Tonjes v. Park County Board of County Commissioners et al

Filing 45

MEMORANDUM OPINION AND ORDER granting in part and denying in part 13 Motion to Dismiss. See attached order for particulars. By Magistrate Judge Kelly H. Rankin on 1/4/2018. (cbslc1)

IN THE UNITED STATE DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:17–cv–00487–KHR
WELLES TONJES,
Plaintiff,
v.
THE PARK COUNTY SHERIFF’S OFFICE;
FRED WEGENER, in his individual capacity; and
MARK HANCOCK, in his individual capacity,
Defendants.
______________________________________________________________________________
MEMORANDUM OPINION AND ORDER REGARDING DEFENDANTS’
MOTION TO DISMISS
______________________________________________________________________________
Magistrate Judge Kelly H. Rankin
This matter comes before the court on the Motion to Dismiss Pursuant to Federal Rule of
Civil Procedure12(b)(1) and 12(b)(6) (doc. #13) filed by Defendants Park County Sheriff’s
Office, Fred Wegener, and Mark Hancock on May 3, 2017. Plaintiff Welles Tonjes filed his
Response in Opposition to Defendants’ Motion to Dismiss (doc. #27) on June 20, 2017, which
was followed by Defendants’ Reply in Support of Defendants’ Motion to Dismiss (doc. #30) on
July 7, 2017. On July 12, 2017, Plaintiff Tonjes filed a Notice of Supplemental Authority in
Support of his Response in Opposition to Defendants’ Motion to Dismiss (doc. #31).
The parties consented (doc. #17) to magistrate judge jurisdiction to “conduct all further
proceedings in this civil action, including trial, and to order the entry of a final judgment,”
pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. Accordingly,
the case was referred on May 11, 2017. Magistrate Judge Craig B. Shaffer heard oral argument

on the pending motion at a hearing on July 13, 2017. Judge Shaffer subsequently became
unavailable, and during his unavailability the case is referred to the undersigned. I have
carefully reviewed the parties’ briefs and attached exhibits, the entire case file, the case law cited
by the parties, and the arguments advanced by counsel during the July 13 hearing. The court
also has conducted its own legal research. For the following reasons, Defendants’ motion is
GRANTED IN PART and DENIED IN PART.
PROCEDURAL BACKGROUND
On February 24, 2016, a member of the Park County Sheriff’s Office was killed and two
of his colleagues were wounded while attempting to enforce a civil eviction notice entered
against Park County resident Martin Wirth. During this incident, Mr. Wirth also was shot and
killed. The lawsuit presently before the court arises from that unfortunate incident.
Plaintiff Tonjes commenced this action on February 24, 2017 by filing a Complaint
pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1367. The Complaint asserted claims against the
Board of County Commissioners for Park County, the Park County Sheriff’s Office (hereinafter
the “Sheriff’s Office”), Sheriff Fred Wegener, and former Captain Mark Hancock. 1 Plaintiff’s
First Claim asserts Defendants deprived him of a constitutionally protected property interest on
February 29, 2016 by demoting him three levels without cause as required by the Sheriff’s Office
Policy and Procedures Manual (hereinafter the “Manual”). The Second Claim alleges
Defendants violated Plaintiff Tonjes’ First Amendment right to freedom of association by taking
adverse action against Mr. Tonjes based upon his association “with former Undersheriff [Monte]
1

On June 19, 2017, Plaintiff Tonjes filed a Notice of Partial Dismissal (doc. #26) indicating that
he was dismissing with prejudice, pursuant to Fed. R. Civ. P. 41(a)(1)(A)(I), all of his claims
against Defendant Board of County Commissioners, as well as his claims for Intentional
Interference with Contract (the Sixth Claim) and Defamation (the Seventh Claim) as to the
remaining defendants. The court has dismissed those claims. Doc. #32 (July 13, 2017 minutes).
2

Gore regarding their joint belief that Defendants Wegener and Hancock had acted recklessly and
inappropriately regarding the Wirth situation, which led to the death of two individuals and
serious injuries against two others.” See Complaint at ¶ 54. The Third Claim alleges under the
Fourteenth Amendment that Defendants Sheriff’s Office and Wegener deprived Plaintiff Tonjes
of his constitutionally protected liberty interest in his good name. The Fourth and Fifth Claims
assert, respectively, breach of contract and promissory estoppel on the part of Defendant
Sheriff’s Office.
To place the pending motion in a factual context, a brief summary of the allegations in
the Complaint may be helpful. In November 2009, Plaintiff Tonjes joined the Park County
Sheriff’s Office after serving as a law enforcement officer for over 35 years. 2 Mr. Tonjes alleges
that when he started with the Sheriff’s Office he received a copy of the Manual, and thereafter
received occasional written updates. 3 Over the course of seven years with the Sheriff’s Office,
Mr. Tonjes served as a Detention Deputy, Patrol Deputy, Patrol Corporal, Patrol/Investigation
Sargent, and most recently as a Patrol Senior Sargent. During that same period, Plaintiff
received positive performance reviews, as well as several Letters of Appreciation, Letters of
Gratitude, and a Special Citation for Bravery.
In February of 2016, the Sheriff's Office was asked to assist in serving a civil eviction
notice on Martin Wirth. The Complaint alleges that the Sheriff’s Office knew that Mr. Wirth

2

From June of 1972 until January of 2008, Mr. Tonjes served as a member of the Denver Police
Department. Complaint at ¶ 10.
3
The Complaint refers to specific portions or policies within the Manual. See Complaint at ¶¶
14–19. Defendants marked as Exhibit A to their Motion those portions of the Manual (Articles
300 through 341) that set forth the policies and procedures relating to “Personnel” matters. See
Doc. #13–1. Defendants also appended Article 201 regarding “Written Directives” to their
Reply brief. See Doc. #30–1. Plaintiff Tonjes also provided the court with the Introduction and
Personnel portions of the Manual with his Response brief. See Doc. #27–1.
3

was “anti-government and anti-police,” as well as “armed, dangerous, and violent.” Complaint
at ¶ 22. For these reasons, Undersheriff Gore instructed Captain Hancock that “Park County
Officers should under no circumstance attempt to enter the Wirth residence.” Id. at ¶ 23. Prior
to February 24, 2016, Plaintiff Tonjes expressed the same view in conversations with Sheriff
Wegener, Captain Hancock and others. Id. at ¶ 24. Leading up to the incident on February 24,
2016, Plaintiff Tonjes had the understanding that the deputy officers participating in the eviction
process would withdraw “if Mr. Wirth refused to come to the door or refused to leave his home.”
Id. at ¶ 25.
Undersheriff Gore and Sargent Tonjes learned on February 24 that Sheriff Wegener and
Capt. Hancock had adopted a different strategy, choosing instead to involve several members of
the SWAT team in the eviction enforcement effort. Id. at ¶ 26. When Mr. Wirth refused to leave
his property, “Sheriff Wegener and Capt. Hancock ordered the deputies to storm the home and
forcibly enter the premises.” In the ensuing exchange of gun fire, “Corporal Nate Carrigan and
Mr. Wirth were shot and killed,” and “[t]wo other deputies suffered [nonfatal] gunshot wounds.”
Id. ¶ 27.
Following the fatal altercation at the Wirth residence, Plaintiff Tonjes and Undersheriff
Gore expressed their belief that the incident, and the associated deaths and injuries, “were caused
by the inappropriate and reckless orders of Sheriff Wegener and Capt. Hancock.” Id. at ¶ 28.
The Complaint further alleges that “Defendants Hancock and Wegener knew or suspected that
Sgt. Tonjes and Undersheriff Gore had expressed concern about their handling of the Wirth
situation.” Complaint at ¶ 29. Undersheriff Gore told Plaintiff Tonjes on February 26, 2016,
that Sheriff Wegener “angrily excluded [him] from” a meeting convened at the Sheriff’s Office

4

to discuss the Wirth incident. Id. at ¶ 30. Later that same day, while they were off-duty,
Undersheriff Gore and Sergeant Tonjes went to Captain Hancock’s residence to discuss the
Wirth incident. The Complaint alleges that “[n]either were meeting with Mr. Hancock in their
official capacities,” but instead “were visiting him as private citizens.” Id. at ¶ 31. During the
ensuing conversation at the Hancock residence,
Undersheriff Gore told Hancock that he held Sheriff Wegener fully
responsible and to blame for the unnecessary violence, death, and
injuries at the Wirth eviction. In response, Capt. Hancock became
angry, appeared to choke, and came up out of his chair
aggressively.
Id. at ¶ 32.
The Complaint alleges that “[s]oon thereafter, Capt. Hancock informed Sheriff Wegener
of his meeting with Sgt. Tonjes and Undersheriff Gore,” and that “Wegener and Hancock
decided to discipline or even fire Plaintiff Tonjes and Undersheriff Gore because of their
opinions regarding how the Wirth situation was handled.” Id. at ¶ 34. When Plaintiff Tonjes
arrived for work on February 29th, Sheriff Wegener informed him that he was being demoted
three levels from a Senior Sargent, and that he should “report to work the next day as a Patrol
Officer.” That demotion would result in a significant reduction in pay. Id. at ¶ 35.
In explaining his decision to demote Plaintiff Tonjes, Sheriff Wegener said that he was
responding to complaints that Plaintiff had supposedly "yelled" at two subordinates. However,
the Complaint states that Sheriff Wegener had not previously informed Plaintiff of these
allegations. Plaintiff Tonjes told Defendant Wegener that the allegations were unfounded.
Complaint at ¶¶ 36 and 37. Prior to telling Plaintiff that he was being demoted, Defendant
Wegener “did not inform Sgt. Tonjes that he was considering any discipline against him, did not

5

inform Sgt. Tonjes of any of the accusations that had been made against him, [ ] did not give him
an opportunity to respond,” and “did not follow the procedures regarding the investigation of
complaints contained in Office Policies 318-320.” Id. at ¶ 42. Believing that the Sheriff’s action
had made his working conditions intolerable, Plaintiff Tonjes “involuntarily resigned his
employment” on February 29, 2016. Id. at ¶ 43.
The Complaint also alleges that:
In deciding to demote Sgt. Tonjes, Defendants Wegener and
Hancock were not acting in the best interests of the Office or
County. Their decision was solely motivated by their desire to
retaliate against Sgt. Tonjes because of his opinions and
associations regarding the Wirth mishap. By demoting Sgt.
Tonjes, Defendants Wegner and Hancock hoped to create the false
impression that Sgt. Tonjes was responsible for the tragedy at the
Wirth property.
Id. at ¶ 39.
On March 2, 2016, Sheriff Wegener allegedly spoke with a reporter from a Denver
television station, and during that conversation stated that his decision to demote Sergeant Tonjes
“related to the handling of how the deputies responded [at the Wirth scene.].” In the wake of that
conversation, a television story reported that “a Park County Sheriff Sargent was in the process
of being demoted and then resigned ... over the tactics that lead [sic] to the Feb. 24 death of Cpl.
Nate Carrigan.” Id. at ¶ 44.
Defendants “deny the vast majority of the allegations, statements and conclusions set
forth in the Complaint,” and argue that Mr. Tonjes “has failed to state a cognizable claim for
relief.” Defendants Wegener and Hancock also insist that they “are clothed with qualified
immunity” as to Plaintiff’s alleged constitutional claims. See Scheduling Order (doc. #21), at 7;
motion (doc. #13) at 12.
6

ANALYSIS
Rule 12(b)(6) states that a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6). In deciding a motion under
Rule 12(b)(6), the court must “accept as true all well-pleaded factual allegations . . . and view
these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d
1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.
2009)). However, a plaintiff may not rely on mere labels or conclusions, “and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007).
To withstand a motion to dismiss, a complaint must contain enough allegations of fact “to
state a claim to relief that is plausible on its face.” Id. As the Tenth Circuit explained in Ridge
at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007), “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.” “The burden is on the
plaintiff to frame ‘a complaint with enough factual matter (taken as true) to suggest’ that he or
she is entitled to relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting
Bell Atlantic, 550 U.S. at 556). A complaint must set forth sufficient facts to elevate a claim
above the level of mere speculation. Id. “Nevertheless, the standard remains a liberal one, and
‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of these
facts is improbable and that a recovery is very remote and unlikely.’” Jordan v. Cooley, No. 13–
cv–01650–REB–MJW, 2014 WL 923279, at *1 (D. Colo. Mar. 10, 2014) (quoting Dias v. City

7

& Cty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)). See also Sanchez v. Hartley, 810 F.3d
750, 756 (10th Cir. 2016) (quoting Bell Atlantic, 550 U.S. at 556).
Generally, a court considers only the contents of the complaint when ruling on a Rule
12(b)(6) motion. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Exceptions to this
general rule include: documents incorporated by reference in the complaint; documents referred
to in and central to the complaint, when no party disputes their authenticity; and “matters of
which a court may take judicial notice.” Id. (quoting Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 322 (2007)). Cf. Gilbert v. Bank of Am. Corp., No. 11–cv–00272–BLW,
2012 WL 4470897, at *2 (D. Idaho Sept. 26, 2012) (noting that a court may take judicial notice
“of the records of state agencies and other undisputed matters of public record” without
transforming a motion to dismiss into a motion for summary judgment). If a plaintiff does not
incorporate by reference or attach a document to its complaint, a defendant may submit an
indisputably authentic copy which the court may consider in ruling on a motion to dismiss. GFF
Corp. v. Ass’d Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997). See also Rooker
v. Ouray Cty., 841 F. Supp. 2d 1212, 1216 (D. Colo. 2012), aff'd, 504 F. App'x 734 (10th Cir.
2012) (considering employee manual attached to Rule 12(b)(6) motions, whose authenticity was
not disputed).
A.

Plaintiff’s Due Process Property Interest, Breach of Contract and Promissory Estoppel
Claims
In moving to dismiss, Defendants argue that Plaintiff’s first claim must fail as Mr. Tonjes

did not have a due process property interest either in his continued employment with the Park

8

County Sheriff’s Office or his rank as a Patrol Senior Sergeant. 4 In essence, Defendants contend
that if C.R.S. § 30–10–506 unequivocally vests county sheriff’s with exclusive and final
decision-making authority over the hiring and firing of sheriff’s office personnel, that same
unfettered discretion must extend to Defendant Wegener’s right to demote subordinates. The
Motion to Dismiss further argues that Plaintiff Tonjes was not terminated or constructively
discharged from the Sheriff’s Office; rather he voluntarily quit. Defendant Hancock maintains
that he cannot be individually liable under the first claim for relief because he did not personally
participate in the decision to demote Plaintiff Tonjes. Finally, Defendants Wegener and
Hancock maintain that they are entitled to qualified immunity because Plaintiff’s first claim does
not assert a cognizable due process violation.
Plaintiff asserts, to the contrary, the Complaint properly alleges a due process claim
predicated on a “contractual and promissory right to be free from discipline and demotion
without clearly specified cause.” More particularly, Mr. Tonjes argues that “Defendants’ right to
terminate at-will has no bearing on [their] right to discipline or demote inconsistent with the
Manual” and that “Defendants’ promises regarding discipline and demotion for cause created a
constitutionally protected property interest in Plaintiff Tonjes’ job.” As for Defendants’ claim of
qualified immunity, Mr. Tonjes maintains that United States Supreme Court and Tenth Circuit
precedents “clearly establish” that “an implied contract or otherwise enforceable promise may
give rise to a constitutionally protected property interest for due process purposes.” Finally, Mr.
Tonjes asserts he was subjected to employment circumstances that were sufficiently intolerable
to constitute constructive discharge. He also contends, in the alternative, that proof of a

4

The Sheriff’s Office also relies on the same argument with respect to Plaintiff’s claims for
breach of contract and promissory estoppel. The court addresses these claims here as well.
9

constructive discharge is not a required element of his due process claim and that a failure to
show constructive discharge would only impact the scope of any economic damages he might
have suffered.
The Due Process Clause of the “Fourteenth Amendment provides that no state shall
‘deprive any person of life, liberty, or property, without due process of law.’” Estate of DiMarco
v. Wyo. Dept. of Corrections, 473 F.3d 1334, 1339 (10th Cir. 2007) (quoting the Due Process
Clause of the U.S. Const. amend. XIV, sec. 1). “To determine whether a plaintiff was denied
procedural due process, we engage in a two-step inquiry: (1) Did the individual possess a
protected interest to which due process protection was applicable? (2) Was the individual
afforded an appropriate level of process?” Hennigh v. City of Shawnee, 155 F.3d 1249, 1253
(10th Cir. 1998). See also Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006) (“[a] due
process claim under the Fourteenth Amendment can only be maintained where there exists a
constitutionally cognizable liberty or property interest with which the state has interfered”); Hyde
Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir. 2000) (to prevail on a due
process claim, a plaintiff must “first establish that a defendant’s action deprived plaintiff of a
protectible [sic] property interest”).
“To demonstrate a property interest, ‘a person clearly must have more than an abstract
need or desire for [a certain benefit] . . . [h]e must have more than a unilateral expectation of it;’
rather a person must have a ‘legitimate claim of entitlement.’” Reid v. Stanley, No. 1:11–CV–
2043, 2011 WL 6371793, at *4 (N.D. Ohio Dec. 20, 2011). The Tenth Circuit has held that
“[t]he existence of a property interest is defined by existing rules or understandings that stem
from an independent source such as state law – rules or understanding that secure certain benefits

10

and [ ] support claims of entitlement to those benefits.” Hennigh, 155 F.3d at 1253. Thus
“constitutionally protected property interests are created and defined by statute, ordinance,
contract, implied contract and rules and understandings developed by state officials.” Hulen v.
Yates, 322 F.3d 1229, 1240 (10th Cir. 2003).
That same analysis governs whether there is a property interest in a particular
employment status. Hennigh, 155 F.3d at 1254 (citing Anglemyer v. Hamilton Cty. Hosp., 58
F.3d 533, 539 (10th Cir. 1995), stating a property interest might be created by specific statutory
provisions or contract terms qualifying an employer’s discretion to reassign or transfer the
employee). See also Greene v. Barrett, 174 F.3d 1136, 1140 (10th Cir. 1999) (holding that state
law “can create a protected property interest in a particular employment status or rank if it
‘places substantive restrictions on the discretion to demote an employee, such as providing that
discipline may only be imposed for cause’”).
It is generally understood that an employee hired for an indeterminate period is an at-will
employee. “This relationship means that either the company or the employee can terminate the
employment relationship without cause and without notice, and that termination does not give
rise to a cause of action.” Winkler v. Bowlmor AMF, 207 F. Supp. 3d 1185, 1189 (D. Colo.
2016) (internal citations omitted). “However, this presumption is rebuttable.” Id. See also
Hulen, 322 F.3d at 1240 (the “general rule” that “no protected property interest is implicated
when an employer reassigned or transfers” an employee “is not absolute if an employee can
point to a specific contractual provision and surrounding circumstances establishing a property
interest.”). “In certain circumstances, an ‘at-will’ employee may enforce an employer’s
statements, such as those made in an employee manual, on a theory of (1) a breach of implied

11

contract or (2) promissory estoppel.” Winkler, 207 F. Supp. 3d at 1189–90. Cf. Silchia v. MC
Telecomm’s Corp., 942 F. Supp. 1369, 1375 (D. Colo. 1996) (“Even if there is a valid
employment-at-will disclaimer in an employment handbook, an employer may nevertheless be
found to have manifested an intent to be bound by its terms if the handbook contains mandatory
termination procedures or requires ‘just cause’ for termination.”)
Under Colorado law, “[e]ach sheriff may appoint as many deputies as the sheriff may
think proper and may revoke such appointments at will; except that a sheriff shall adopt
personnel policies, including policies for the review of revocation of appointments.” Colo. Rev.
Stat. § 30–10–506. The Park County Sheriff’s Office Policy and Procedure Manual plainly
states that “Park County, including the Sheriff’s Office, is an ‘at-will’ employer.” See Policy
303(III) set forth in Exhibit A (doc. #27–1) at page 9 of 105, attached to Plaintiff’s response
brief. Elsewhere, the Manual acknowledges that
The Sheriff’s Office is an “employment at will” employer. Sworn employees
serve “at the pleasure” of the Sheriff. Both the Employee and the Sheriff’s Office
have the right to end employment at any time. Employees may be dismissed for
reasons discussed in Chapter III, Section 320, Disciplinary Action.
See Policy 309(IV)(A)(4) set forth in Exhibit A (doc. #27–1) at page 24 of 105, attached to
Plaintiff’s response brief.
But, as the Tenth Circuit noted in Williams v. McKee, 655 F. App’x 677, 686 (10th Cir.
2016), a constitutionally protected claim of entitlement “may take the form of ‘state statutes,
local ordinances, established rules, or mutually explicit understandings.” Id. at 686–87 (where
plaintiff challenged his termination for failing to comply with an order issued by the sheriff, the
Tenth Circuit noted “there [were] simply no facts in the amended complaint to support the
assertion that . . . termination implicated a liberty interest”).
12

Defendants rely on Williams, Bristol v. Board of County Commissioners, 312 F.3d 1213,
1219 (10th Cir. 2002) and Seeley v. Board of County of Commissioners, 791 P.2d 696 (Colo.
1990) to argue the Manual cannot be enforced because “self-imposed limitations on [a sheriff’s]
right to discharge employees at will are invalid.” Doc. #13 (motion) at 6. Seeley and Bristol
interpreted a former version of C.R.S. § 30–10–506 which provided “[e]ach sheriff may appoint
as many deputies as he may think proper … and may revoke such appointments at his pleasure.”
C.R.S. § 30–10–506 (2005). In 2006, the legislature amended § 30–10–506 to read:
Each sheriff may appoint as many deputies as the sheriff may think
proper and may revoke such appointments at will; except that a
sheriff shall adopt personnel policies, including policies for the
review of revocation of appointments. Before revoking an
appointment of a deputy, the sheriff shall notify the deputy of the
reason for the proposed revocation and shall give the deputy an
opportunity to be heard by the sheriff.
C.R.S. § 30–10–506 (in relevant part, emphasis added).
Since the 2006 amendment, the statute provides that sheriffs may terminate officers at
will, but they shall adopt personnel policies. The statute does not limit sheriffs’ discretion in
determining what policies to adopt. The legislative history reflects the intent to authorize
sheriffs’ policies that limit the power to terminate employees at will. See County Government—
Sheriff Power—Limitations, an Act Concerning County Sheriffs, and in Connection Therewith,
Limiting the Power of a Sheriff to Revoke the Appointment of a Deputy at Will…, 2006 Colo.
Legis. Serv. Ch. 43 (H.B. 06–1181) (West) (amending C.R.S. § 30–10–506, effective Aug. 9,
2006). To read C.R.S. § 30–10–506 as impliedly prohibiting sheriffs from adopting policies that
limit their power to terminate (or demote, discipline, etc.) employees at will would make the
amendment meaningless. Williams’ quotation of Bristol postdates the statutory amendment but

13

is dicta. Williams addresses whether a county’s personnel policies – not a sheriff’s policies –
gave contractual promises to employees in the sheriff’s office, and concludes that only the sheriff
had such authority. 655 F. App’x at 686–87. Post-2006, Sheriff Wegener has the ability to
adopt policies that limit his power to terminate (demote, discipline, etc.) employees at will, and
the prior law does not help Defendants.
Defendants’ motion also cites with favor the decision in Nicastle v. Adams County
Sheriff’s Office, No. 10–cv–00816–REB–KMT, 2011 WL 1598062 (D. Colo. Apr. 28, 2011).
Nicastle does not support dismissal here. First, in considering the officer’s argument that
personnel policies gave him a property interest in his continued employment in the sheriff’s
office, Nicastle implicitly recognizes that sheriffs are authorized to adopt personnel policies that
limit their right to terminate deputies at will. Id. at *5. This contradicts Defendants’ argument
that the Manual is unenforceable. Second, in Nicastle the district court granted the defendants’
motion for summary judgment after noting the plaintiff-deputy failed to cite any specific policies
that supported his expectation of notice and a fair and adequate opportunity to be heard before he
was demoted or terminated. Id. at *5 (noting that Colo. Rev. Stat. § 30–10–506 “provides
procedural detail but does not place substantive restrictions on the discretion of a sheriff to
revoke an appointment or to demote an employee”). Compare Robinson v. Robinson, No. 05–
cv–01433REBPAC, 2006 WL 726296, at *2 (D. Colo. Mar. 20, 2006) (in entering summary
judgment in favor of defendant, the court held that the plaintiff who resigned from his position
did not show a procedural due process violation; the plaintiff “affirmed that there is no custom or
policy of the Sheriff’s office at issue in this case” because the Sheriff’s Office policy and
procedure manual explicitly stated that “[n]o portion of this manual or this policy shall constitute

14

a contract between the Sheriff and the member”), rev'd and remanded on other issue, 226 F.
App'x 805 (10th Cir. 2007).
In this case, however, Plaintiff Tonjes alleges that the Manual “promises Sheriff’s Office
employees that it will follow a specific disciplinary process and informs them of the permitted
ranges of discipline for various infractions.” See Complaint at ¶ 18. The Complaint cites various
provisions of the Manual, see id. at ¶¶ 14–19, and both sides have attached pertinent portions of
the Manual to their briefs.
Unlike in Nicastle, the Manual has specific provisions that address “Conduct Rules and
Regulations” (Policy 314), “Complaint Handling/Investigation Procedures” (Policy 318), and
“Corrective and Disciplinary Action” (Policy 320). Policy 314 governing Conduct Rules and
Regulations states that “[i]t shall be the policy of the Sheriff’s office to establish general rules of
conduct for its employees” and “[t]hese rules will be established in accordance with existing
laws as expected by law enforcement personnel and the citizens of this community.” 5 See Policy
314(III) set forth in Exhibit A (doc. #27–1) at page 37 of 105, attached to Plaintiff’s response
brief. This same Policy states that
Members will not commit any act that constitutes a violation of
any Office rules, regulations, procedures, responsibilities,
instructions or written directive. In the event of improper action or
breach of discipline, it will be presumed that the employee was
familiar with the rules, policies, procedures, responsibilities,
instructions or orders. Furthermore, members will not aid, abet, or
incite another in the violation of rules, duties, orders, policies, or
procedures of the Office.

5

The same Policy states that “[r]ules and regulations are designed as guidelines for behavior in
an organization.” See Policy 314(IV)(A) set forth in Exhibit A (doc. #27–1) at page 37 of 105,
attached to Plaintiff’s response brief.
15

See Policy 314(IV)(A)(2) set forth in Exhibit A (doc. #27–1) at page 37 of 105 (emphasis
added). Included in the Conduct Rules and Regulations are provisions that require “members
[to] treat Supervisors and Command personnel with the respect and courtesy due them as
Supervisors and Command personnel,” and for all “members to treat other members of the
Office with the respect and courtesy due them as fellow employees.” See Policy 314(IV)(A)(11)
set forth in doc. #27–1 at page 38 of 105. Members of the Sheriff’s Office “will not engage in
conduct prejudicial to the good order and discipline” and will “conduct themselves at all times
both on and off duty in a manner that reflects most favorably on the Office.” See Policy
314(IV)(A)(24) set forth in doc. #27–1 at page 40 of 105. Sheriff’s Office personnel “will not
criticize the Office . . . except through official channels and by use of the prescribed procedures,”
but “[t]his rule is not intended to preclude the offering of personal opinions, while off duty, in
the course of conversations deemed to be private.” See Id. at Policy 314(IV)(A)(26) (emphasis
added). Finally, “[m]embers will not utter any disrespectful, mutinous, insolent, or abusive
language toward any member, supervisor, subordinate, staff officer or citizen.” See Id. at Policy
314(IV)(A)(27).
Policy 318 provides “guidance for the proper and consistent handling of both internal 6
and external complaints,” and states that the “policy of the Sheriff’s Office” is “to conduct fair
and impartial investigations of legitimate complaints.” See Policy 318(I) and (III) set forth in
doc. #27–1 at page 53 of 105. Level I and II 7 complaints will be addressed “in the same format”

6

“Internal complaints” are “made by a member of the Sheriff’s Office.” See doc. #27–1 at
Policy 318(II), page 53 of 105.
7
Level I complaints include “serious policy violations” such as “employee against employee
complaints” and potentially raise “[a]ll levels of discipline.” Level II complaints address
“[p]olicy violations such as Disobedience to Orders, Performance of Duty, or willful
misconduct.” See Policy 318(IV)(B)(1) and (2) set forth in doc. #27–1 at page 54 of 105.
16

to “ensure uniformed [sic] complaint procedures.” For the foregoing complaints, “[t]he
Undersheriff will . . . hold a fact-finding meeting with the accused employee” and “will then
make final recommendations to the Sheriff.” See Policy 318(IV)(C)(1) and (2) set forth in doc.
#27–1 at page 54–55 of 105 (emphasis added). For Level III complaints 8 the employee’s
immediate supervisor “will forward the complaint and any other information retrieved during the
Preliminary Investigation, to the accused employee for a written response,” and “[t]he Division
Commander will have the final review of authority over Level III complaints.” See Id. at Policy
318(IV)(D), page 55 of 105.
The Manual addresses Corrective and Disciplinary Action in Policy 320. The “purpose”
of this Policy is “[t]o provide guidance on the proper administration of corrective action and
discipline to members of the Sheriff’s Office,” while the “policy” is to provide “fair and
consistent, disciplinary sanctions” by “conforming to the established due process requirements.”
Policy 320 states that “[t]hrough a defined and formal process, the high standards of the Sheriff’s
Office will be maintained.” See Policy 320(I) and (III) set forth in doc. #27–1 at page 60-61 of
105 (emphasis added). Finally, “[t]he Sheriff’s policy on the administration of corrective action
is to provide guidance and fairness. The Sheriff reserves the ability to mandate disciplinary
action to a lesser or greater level than the chain of command’s recommendation.” 9 See Policy
320(IV) (F) set forth in doc. #27–1 at page 64 of 105.

8

Level III complaints address, inter alia, “[c]ourtesy complaints of rudeness, disrespect,
impartiality, procedure complaints of procedural complaints of procedures specifically related to
the employee’s duty assignment . . . [or] supervisory issues such as . . . minor procedural errors.”
The range of discipline for these violations would be “Letter of Counseling, Probation, Letter of
Reprimand.” See Policy 318(IV)(B)(3) set forth in doc. #27–1 at page 54 of 105.
9
Level I or II disciplinary actions are made by the Undersheriff, with appeals to the Sheriff.
Level III disciplinary actions are made by the accused’s Division Commander, with no right of
17

Plaintiff Tonjes alleges he “had a property interest in his position as Patrol Senior
Sargeant and in continuing employment with [the] Park County Sheriff’s Office by virtue of its
personnel policies regarding demotions and discipline.” See Complaint at ¶ 48. The Complaint
asserts that Defendant Wegener imposed sanctions that were so onerous as to constitute a
constructive discharge. Id. at ¶ 43. More importantly, for purposes of his procedural due process
claim, Mr. Tonjes asserts Defendant Wegener wrongfully violated numerous provisions of the
Manual that provided employees with clearly articulated protections. Id. at ¶¶ 14–19, 41–42 and
50. Cf. Cronk v. Intermountain Rural Electric Ass’n, 765 P.2d 619, 622–23 (Colo. App. 1988)
(in reversing summary judgment in favor of the defendant, the court held the employee manual
offered more than “general provisions” and “set[] forth certain express events which might cause
the employee to be terminated,” and thus could constitute an implied contract); Duran v.
Flagstar Corp., 17 F. Supp. 2d 1195, 1201–02 (D. Colo. Aug. 26, 1998) (denying defendant’s
argument on summary judgment that employee handbook expressly disclaimed contractual
intent, inferring the provision “applied to the term of employment–not the conditions of
employment”). In short, Defendants’ motion relies on the Manual’s provisions that favor
Defendants’ position that there was no contract limiting the Sheriff’s discretion in demoting Mr.
Tonjes, but the motion also ignores the many, specific provisions discussed above that support
Mr. Tonjes’ allegations that the Manual was a contract limiting that discretion to the substantive
reasons and processes for demotion provided in the Manual. This is a factual issue that cannot
be resolved on a motion to dismiss.

appeals to either the Undersheriff or Sheriff. See Policy 320(IV)(A) and (E) set forth in doc.
#27–1 at page 62–63 of 105.
18

As for Plaintiff’s asserted constructive discharge, the court looks to prevailing case law in
the Tenth Circuit and other federal jurisdictions. “An employee’s resignation or retirement from
public employment is ‘presumed to be voluntary.’” Speziale v. Bethlehem Area Sch. Dist., 266
F. Supp. 2d 366, 372 (E.D. Pa. 2003) (quoting Leheny v. City of Pittsburgh, 183 F.3d 220, 227
(3rd Cir. 1999)).
This presumption remains intact until the employee presents
evidence to establish that the resignation . . . was involuntarily
procured. If an employee retires . . . of his own free will, even
though prompted to do so by some action of his employer, he is
deemed to have relinquished his property interest in his continued
employment for the government, and cannot contend that he was
deprived of his due process rights.
Leheny, 183 F.3d at 227. Cf. Cacy v. City of Chickasha, 124 F.3d 216 (Table), 1997 WL
537864, at *6 (10th Cir. Sept. 2, 1997) (noting that if the plaintiff voluntarily resigned from his
government employment, he has no property interest claim under the due process clause); Parker
v. Bd. of Regents of Tulsa Jr. Coll., 981 F.2d 1159, 1162 (10th Cir. 1992) (same); Burdine v.
Greenville Tech. Coll., No. 6:08–cv–03764–JM, 2010 WL 5211544, at *5 (D.S.C. Dec. 16,
2010) (“[a]n employee is entitled to relief absent a formal discharge if an employer deliberately
makes the working conditions intolerable in an effort to induce the employee to quit,” internal
quotation marks omitted). See also Heutzenroeder v. Mesa Cty. Valley Sch. Dist. 51, 391 F.
App’x 688, 693 (10th Cir. 2010) (“[g]enerally, whether a constructive discharge occurred is a
question of fact to be resolved by the jury”).
The Tenth Circuit has held that a public employee may assert a due process claim
predicated on constructive discharge, standing alone, where the employer “intentionally or
knowingly creat[es] working conditions so intolerable that a reasonable employee would quit.”

19

Lauck v. Campbell Cty., 627 F.3d 805, 813 (10th Cir. 2010). The due process violation occurs to
the extent the employer is seeking to circumvent due process protections and thereby violate the
employee’s due process or contract rights. Id. When the employee asserts a due-process
constructive-discharge claim, he must show: (1) that a property right was violated; (2) that the
employer knew or intended that such intolerable conditions were being imposed on the
employee; and (3) that the employee was denied the necessary procedure to determine whether
the contemplated action would violate the employee’s contractual rights. Lauck, 627 F.3d at 813
(holding in the context of a motion for summary judgment, that the plaintiff deputy sheriff did
not satisfy these elements because his transfer did not change his pay or rank and did not
materially change the scope of his law enforcement authority, because there was no evidence to
suggest that the employer knew these new conditions would be intolerable, and because he was
afforded due process protections).
In this case, Plaintiff Tonjes argues that his circumstances materially differ from those
confronting the plaintiff in Lauck, since Mr. Tonjes was demoted three levels and would have
suffered a significant reduction in pay. See, e.g., Potts v. Davis Cty., 551 F.3d 1188, 1193 (10th
Cir. 2009) (former officer did not state § 1983 claim for constructive discharge by reassignment
because his rank and salary remained the same); James v. Sears, Roebuck & Co., 21 F.3d 989,
993 (10th Cir. 1994) (ADEA claim). Mr. Tonjes further alleges that Defendant Wegener’s
actions departed from the policies and procedures set forth in the Manual, including the
admonition in Policy 320 that corrective or disciplinary action be imposed through “a defined
and formal process” that would ensure “fair and consistent, disciplinary sanctions” in conformity
with “established due process requirements.”

20

Although this is a close issue, in the end, the court must adhere to the constraints imposed
by Rule 12(b)(6) and construe the facts alleged in the Complaint in a light most favorable to Mr.
Tonjes. On that limited record, I conclude that the allegations advanced in support of Plaintiff’s
due process claim are sufficient to withstand challenge under Rule 12(b)(6). Mr. Tonjes points
to specific provisions of the employee Manual as promising formal processes for demotions and
discipline. Policy 309(IV)(A)(4) states that employment is “at will,” but it also states that the
employee may be dismissed for the reasons set forth in the policies of Section 320 – the section
that provides formal processes for discipline or corrective action that Defendant Wegener
allegedly did not follow. Policy 318(IV)(B) also provided that complaints of rudeness or
discourtesy could lead to only limited forms of discipline that did not include demotion, and
Plaintiff Tonjes alleges Wegener purported to base his demotion on this type of complaint.
Mr. Tonjes’ allegations contrast to cases in which the court has dismissed a government
employee’s claim for lack of a property interest. See, e.g., Rooker, 841 F. Supp. 2d at 1217–18
(employee manual provided an opportunity to be heard before termination, but also specified atwill employment and “failure to adhere to any provision hereof shall not create any additional
rights or remedies”); Jeffers v. Denver Pub. Sch., No. 16–cv–02243–CMA–MJW, 2017 WL
2001632, at *5 (D. Colo. May 11, 2017) (manual stated “employment may be terminated for any
time, with or without cause”), rec. adopted, 2017 WL 5441612 (D. Colo. June 1, 2017), recon.
den’d, 2017 WL 5256359 (D. Colo. Nov. 13, 2017).
In short, Mr. Tonjes plausibly alleges the employee manual constitutes a contract limiting
the reasons for which he could be demoted and the process by which demotion could be

21

executed. The first, fourth (breach of contract) and fifth (promissory estoppel) 10 claims for relief
survive Defendants’ motion to dismiss. At this time, the court offers no views on whether
Plaintiff’s claims can be sustained on a broader record.
1.

Defendant Hancock’s Personal Participation

Defendant Hancock argues that he should be dismissed from this claim because Plaintiff
“does not allege any personal participation by Defendant Hancock in effectuating Plaintiff’s
demotion.” Hancock argues that “[i]ndividual liability under 42 U.S.C. § 1983 must be based on
the defendant’s personal participation in the allegedly unconstitutional conduct,” citing Brown v.
Montoya, 662 F.3d 1152, 1163 (10th Cir. 2011). Mr. Tonjes does not dispute this legal standard
applies and points to his allegations that Hancock
informed Sheriff Wegener of his meeting with Sgt. Tonjes and
Undersheriff Gore and the statements Gore made regarding the
Wirth situation. At that time, Wegener and Hancock decided to
discipline or even fire Plaintiff Tonjes and Undersheriff Gore
because of their opinions regarding how the Wirth situation was
handled.
Complaint at ¶ 34. Mr. Hancock replies that “Plaintiff has not shown how Defendant Hancock’s
alleged act of reporting relevant information to his supervisor, regarding a discussion pertaining
to an ongoing investigation, was sufficient to constitute personal participation or causation of
such a violation” of Plaintiff’s due process rights with respect to his property interest in
continued employment with the Sheriff’s Office.
“Because vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the official's own individual actions, has violated

10

Defendants briefly argue Plaintiff Tonjes cannot meet the detrimental reliance element of this
claim because he voluntarily resigned. Defendants have not shown that at this phase the court
should analyze that question differently than it has for the due process claim.
22

the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Here Mr. Tonjes alleges that the
decision to discipline or fire him was a joint decision of Sheriff Wegener and Captain Hancock.
He also alleges that Wegener demoted him because of the information that Hancock reported
regarding his meeting with Gore and Tonjes.
Mr. Tonjes does not allege that Hancock was his supervisor, that Hancock himself
otherwise had the authority to discipline or fire him, or that Hancock actually participated in
effectuating the demotion. But Mr. Hancock has not shown such allegations to be necessary for
the personal participation element. It suffices if Mr. Hancock “set in motion a series of events
that the defendant knew or reasonably should have known would cause others to deprive the
plaintiff of her constitutional rights.” Dodds v. Richardson, 614 F.3d 1185, 1195–96 (10th Cir.
2010) (noting that § 1983 states “[a]ny official who ‘causes’ a citizen to be deprived of her
constitutional rights can also be held liable,” and the requisite causal connection can be met by
“showing the defendant set in motion” such a series of events). See also Poolaw v. Marcantel,
565 F.3d 721, 732–33 (10th Cir. 2000); Hoffman v. Kelz, 443 F. Supp. 2d 1007, 1013–14 (W.D.
Wis. 2006) (former police chief’s § 1983 claim against district attorney who allegedly persuaded
the village board to not renew chief’s contract based on false statements survived Rule 12).
Mr. Tonjes’ allegations are somewhat light on asserting that when Captain Hancock
informed Sheriff Wegener of the meeting with Gore and Tonjes, he intended or should have
known that information would cause Wegener to terminate or demote Mr. Tonjes in violation of
the Sheriff’s personnel policies. However, a jury could reasonably infer that fact from Plaintiff
Tonjes’ allegations that at the meeting, Hancock became angry with Gore and Tonjes and in

23

going to Sheriff Wegener was motivated by a desire to retaliate. Again, the court does not
purport to decide whether this claim can survive against Hancock on a broader record.
2.

Defendants Wegener and Hancock’s Assertion of Qualified Immunity

“The doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Messerschmidt v. Millender, 565 U.S.
535, 546 (2012) (internal quotation marks and citations omitted). See also Duncan v. Gunter, 15
F.3d 989, 992 (10th Cir. 1994) (same) internal quotation marks and citations omitted). Stated
differently, the affirmative defense of qualified immunity “protects all but the plainly
incompetent [government official] or those who knowingly violate the law.” Holland ex rel.
Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001). Whether a defendant is entitled
to qualified immunity is a legal question. Wilder v. Turner, 490 F.3d 810, 813 (10th Cir. 2007).
First, a court must decide whether the facts that a plaintiff has
alleged or shown make out a violation of a constitutional right.
Second ... the court must decide whether the right at issue was
clearly established at the time of the defendant's alleged
misconduct. With regard to this second [prong], the relevant,
dispositive inquiry … is whether it would be clear to a reasonable
officer that his conduct was unlawful under the circumstances
presented
Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal quotation marks
and citations omitted). “Qualified immunity is applicable unless” the plaintiff can satisfy both
prongs of the inquiry. Id. See also Verdecia v. Adams, 327 F.3d 1171, 1174 (10th Cir. 2003)
(once a defendant asserts qualified immunity, the burden shifts to the plaintiff to show the
defendant violated a constitutional or statutory right that was clearly established at the time).

24

“The ‘clearly established’ inquiry examines whether the contours of the constitutional
right were so well-settled, in the particular circumstances presented, that ‘every reasonable
[state] official would have understood that what he is doing violates that right.” Reichle v.
Howards, 566 U.S. 658, 664 (2012). Stated differently, “the salient question ... is whether the
state of the law at the time of [the] incident provided ‘fair warning’ to the defendants that their
alleged conduct was unconstitutional.” Tolan v. Cotton,

U.S.

, 134 S. Ct. 1861, 1866 (2014)

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). See also Pompeo v. Bd. of Regents of the
Univ. of N.M., 852 F.3d 973, 981 (10th Cir. 2017) (there “ordinarily must be a Supreme Court or
Tenth Circuit opinion on point, or the clearly established weight of authority from other circuits
must point in one direction”). “Although plaintiff can overcome a qualified-immunity defense
without a favorable case directly on point, existing precedent must have placed the statutory or
constitutional question ‘beyond debate.” Garcia v. Escalante, 678 F. App’x 649, 654 (10th Cir.
2017) (“The dispositive question is ‘whether the violative nature of the particular conduct is
clearly established.’”) (internal quotation marks omitted). 11
Officials do not lose their qualified immunity because of a
mistaken, yet reasonable belief, nor do officials lose their
immunity because of a reasonable mistake as to the legality of their
actions. [T]he purpose of the qualified immunity doctrine is to
provide ample room for mistaken judgments and to protect all but
the plainly incompetent or those who knowingly violate the law.
Dupree v. City of Jacksonville, No.4:08CV00327 JMM, 2009 WL 1392578, at *6 (E.D. Ark.
May 13, 2009) (internal citation and quotation marks omitted). Thus, “if a reasonable officer

11

The Supreme Court recently cautioned that “‘clearly established law” should not be defined ‘at
a high level of generality;’” rather “the clearly established law must be ‘particularized to the
facts of the case.’” White v. Pauly, U.S. , 137 S. Ct. 548, 552 (2017) (per curiam).
“Otherwise, [p]laintiffs would be able to convert the rule of qualified immunity . . . into a rule of
virtually unqualified liability simply by alleging violation of extremely abstract rights.” Id.
25

might not have known for certain that the conduct was unlawful—then the officer is immune
from liability.” Ziglar v. Abbasi, __ U.S. __, 137 S. Ct. 1843, 1867 (2017).
“Asserting a qualified immunity defense via a Rule 12(b)(6) motion ... subjects the
defendant to a more challenging standard of review than would apply on summary judgment,” as
the court must consider only the facts alleged in the plaintiff’s complaint and must accept those
well-pled facts as true and view the allegations in the light most favorable to the plaintiff.
Sanchez v. Labate, 564 F. App’x 371, 373 (10th Cir. 2014). In contrast, under Rule 56, the court
“shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact” and the non-movant fails to come forward with sufficient evidence to demonstrate
the existence of such a genuine dispute. Cf. Guidotti v. Legal Helpers Debt Resolution, LLC,
716 F.3d 764, 772 (3d Cir. 2013). In short, the burden on the non-moving party is significantly
different depending upon whether the movant is seeking relief under Rule 12(b)(6) or Rule 56. 12
In this case, the foregoing discussion of Colorado law shows that it was reasonably clear
that the Park County Sheriff’s Office employee manual could constitute a contract governing the
reasons that an officer could be demoted and the process for doing so, and that demoting Mr.
Tonjes without complying with that manual would deprive Mr. Tonjes of a property interest
without due process. Defendants Wegener and Hancock can revisit this issue at summary
judgment on a broader record, but the court concludes that Tonjes’ allegations suffice to
overcome Defendants’ qualified immunity at this phase.

12

Perhaps not surprisingly, many of the cases cited in Defendants’ briefing involved motions for
summary judgment that were resolved in favor of the defendant(s).
26

B.

Plaintiff’s First Amendment Claim

Defendants contend that Plaintiff’s second claim fails to state a cognizable violation of
the First Amendment because Mr. Tonjes never actually engaged in protected activity sufficient
to trigger his constitutionally protected right to “expressive association.” More particularly,
Defendants contend that Plaintiff’s “unclear and unspecific allegations” do not encompass any
constitutionally protected associational activities. They argue that the Complaint merely alleges
that Mr. Tonjes was physically present when Undersheriff Gore expressed a particular view that
appeared to upset Captain Hancock. The motion further argues that Mr. Tonjes has not alleged
facts that would plausibly demonstrate a causal connection between his demotion and his alleged
“association” with Undersheriff Gore. Finally, Defendants Wegener and Hancock insist they are
entitled to qualified immunity in the absence of a properly alleged First Amendment violation.
Plaintiff’s First Amendment claim asserts that Mr. Tonjes’ retaliatory demotion was
motivated by his “associational activities” with former Undersheriff Gore that “touched on
matters of public concern,” and that Plaintiff was not acting pursuant to his official duties in
exercising his “associational rights.” Mr. Tonjes argues that the Complaint alleges facts that
support each and every element for a First Amendment retaliation claim based upon a freedom of
association, and that Supreme Court and Tenth Circuit precedents clearly establish “that an
employer may not terminate an employee because the employee was associated with another
individual who exercised Free Speech rights.” 13

13

The Tenth Circuit refers to two senses of the freedom of association, the “intrinsic” relating to
“certain intimate human interactions” and the “instrumental” relating to “associations necessary
to engage in the enumerated First Amendment rights.” See Merrifield v. Bd. of Cty. Comm’rs for
Cty. of Santa Fe, 654 F.3d 1073, 1080 (10th Cir. 2011). Mr. Tonjes alleges the latter.
27

In Roberts v. United States Jaycees 468 U.S. 609, 617–18 (1984), the Supreme Court
recognized that the First Amendment encompasses a right to “expressive association.” The
freedom of expressive association affords “protection to collective effort on behalf of shared
goals;” i.e., “the right to associate with others in pursuit of a wide variety of political, social,
economic, educational, religious and cultural ends.” Id. at 622. The Supreme Court in Roberts
held that while the right to associate for expressive purposes is not absolute and may be restricted
to serve compelling state interests, the freedom of expressive association prevents the
government from penalizing an individual because of their membership in a disfavored group,
from requiring disclosure of an individual’s membership in a group seeking anonymity, or
interfering with the internal organization or affairs of a group. Roberts, 468 U.S. at 622–23. Cf.
Schalk v. Gallemore, 906 F.2d 491, 497–98 (10th Cir. 1990) (citing Roberts, 468 U.S. at 617–
18).
The right of expressive association – the freedom to associate for
the purpose of engaging in activities protected by the First
Amendment, such as speech, assembly, petition for the redress of
grievances, and the exercise of religion – is protected by the First
Amendment as a necessary corollary of the right that the
amendment protects by its terms. The state may not take a
materially adverse action against its employee in retaliation for
exercising First Amendment associational rights.
Trigo v. City of Doral, 663 F. App’x 871, 874–75 (11th Cir. 2016).
Roberts and its progeny make clear that the freedom of expressive association protects
the collective interests of a group whose members share common interests or objectives. See,
e.g., Dawson v. Delaware, 503 U.S. 159, 163 (1992) (recognizing that the First Amendment
protects an individual’s right to associate with others holding similar views) and Boy Scouts of
Am. v. Dale, 530 U.S. 640, 648 (2000). “To determine whether a group is protected by the First
28

Amendment’s expressive associational right, we must determine whether the group engages in
‘expressive association.’ The First Amendment’s protection of expressive association is not
reserved for advocacy groups. But to come within its ambit, a group must engage in some form
of expression, whether it be public or private.” Id.
“[F]reedom of speech” means more than simply the right to talk
and to write. It is possible to find some kernel of expression in
almost every activity a person undertakes – for example, walking
down the street or meeting one’s friends at a shopping mall – but
such a kernel is not sufficient to bring the activity within the
protection of the First Amendment. . . . [W]e do not think the
Constitution recognizes a generalized right of “social
association[.]”
City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989).
Mr. Tonjes’ First Amendment claim is subject to additional considerations by virtue of
his status as a public employee. When the government is functioning as employer, the
employee’s rights may be constrained to the extent that the First Amendment activity in question
is insubordinate, disruptive, or demoralizing. Merrifield v. Bd. of Cty. Comm’rs, 654 F.3d 1073,
1079 (10th Cir. 2011) (“When a citizen enters government service, the citizen by necessity must
accept certain limitations on his or her freedom. Government employers, like private employers,
need a significant degree of control over their employees’ words and actions; without it, there
would be little chance for the efficient provision of public services.”) (quoting Garcetti v.
Ceballos, 547 U.S. 410, 418 (2006)).
To show that a government employer retaliated for “exercising the … freedom of
association for the purpose of engaging in speech, assembly, or petitioning for redress of
grievances,” the government employee must show that the association “involved a matter of

29

public concern.” Merrifield, 654 F.3d at 1084–85. This limitation prevents constitutionalizing
“everyday employment disputes.” Id.
Speech deals with matters of public concern when it can “be fairly
considered as relating to any matter of political, social, or other
concern to the community,” … or when it “is a subject of
legitimate news interest; that is, a subject of general interest and of
value and concern to the public.”
Snyder v. Phelps, 562 U.S. 443, 453 (2011). See also Schalk, 906 F.2d at 495.
Thus, to prevail on his First Amendment retaliation based on his right of expressive
association, Mr. Tonjes must allege facts that plausibly demonstrate (1) he engaged in First
Amendment activity that involved a matter of public concern; (2) his interests in that protected
activity outweighed the Sheriff Department’s interest in regulating that activity; and (3)
Plaintiff’s protected activity was a substantial motivating factor in the decision to take adverse
action against him. If Mr. Tonjes establishes the foregoing elements, Defendants then must
show that they would have taken the same action against Plaintiff in the absence of his alleged
protected activity. See Cillo v. City of Greenwood Village, 739 F.3d 451, 460–61 (10th Cir.
2013).
Defendants first argue that the Complaint fails to allege that Mr. Tonjes was associated
with Undersheriff Gore for the purpose of engaging in protected speech. But the Tenth Circuit
has simply required the government employee’s association to “involve” a matter of public
concern; the association could be a “means to effectuate” or simply “enable [the plaintiff] to
speak or petition” on a matter of public concern. Merrifield, 654 F.3d at 1084. “[A] public
employee bringing a First Amendment freedom of association claim must persuade the court that
the associational conduct at issue touches on a matter of public concern,” which in turn is

30

“determined by the content, form, and context of a given statement, as revealed by the whole
record.” Lunch v. Ackley, No. 3:12–cv–537 (MPS), 2014 WL 4782812, at *18 (D. Conn. Sept.
24, 2014). See also Snyder, 562 U.S. at 453 (same analysis for government employee’s freedom
of speech claim); Russo v. City of Hartford, 341 F. Supp. 2d 85, 96 (D. Conn. 2004) (the court
should consider whether the public employee’s “conduct, taken as a whole, was actually meant
to address matters of public concern, or was simply a vehicle for furthering her private
interests”). Speech that encompasses issues of public concern does not lose its First Amendment
protection simply because some personal concerns are also included. Hulen v. Yates, 322 F.3d
1229, 1238 (10th Cir. 2003). The same is true of the right of association. See, e.g., BrammerHoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1206, 1209 (10th Cir. 2007) (four of
twelve topics discussed by public employees were matters of public concern, thus their freedom
of association retaliation claim survived summary judgment).
For purposes of stating a claim, the Complaint sufficiently alleges that Mr. Tonjes was
engaged in protected expressive activities with Undersheriff Gore following the fatal shootings
on February 24, 2016. Mr. Tonjes alleges that he and Undersheriff Gore agreed that the deaths
of Corporal Carrigan and Mr. Wirth, as well as the injuries sustained by two other deputies, were
caused “by the inappropriate and reckless orders of Sheriff Wegener and Captain Hancock.”
While off duty on February 26, 2016, Mr. Tonjes and Undersheriff Gore together visited Captain
Hancock at his home to discuss the Wirth shooting. During the ensuing exchange, Undersheriff
Gore stated that he held the Sheriff responsible for the unnecessary violence, death and injuries
at the Wirth eviction. Cf. Behne v. Halstead, No. 1:13–CV–0056, 2014 WL 1689950, at *18–19
(M.D. Pa. Apr. 29, 2014) (holding that First Amendment rights extend to an individual who

31

suffers adverse employment action because of their association with another person’s speech).
The Complaint further alleges that between February 26, 2016 and February 29, 2016, Captain
Hancock informed the Sheriff of his exchange with Tonjes and Gore, and that a decision was
made to discipline or potentially fire Plaintiff based on what Undersheriff Gore had expressed at
the Hancock residence. On February 29, 2016, Sheriff Wegener announced that he was
demoting Plaintiff by three grade levels based upon what Mr. Tonjes asserts were unfounded
allegations of misconduct directed at other officers. Plaintiff adequately pleads a claim that his
association with Gore involved speech on a matter of public concern.
Defendants argue that “[a]n isolated ‘kernel of expression’ is insufficient to bring
Plaintiff’s alleged ‘association’ within the protection of the First Amendment.” Doc. #13
(motion) at 15, citing Dillon v. Twin Peaks Charter Acad., 406 Fed. App’x. 253, 259 (10th Cir.
2010). Dillon rejects a public employee’s argument that the right to association extends beyond
intrinsic and expressive associations to any form of association. This is not at issue here. Mr.
Tonjes alleges he had an expressive association. Defendants argue the alleged association was
just two “private conversations concerning [Plaintiff and Undersheriff Gore’s] official duties,”
citing Brammer-Hoelter, 492 F.3d at 1205; Hom v. Squire, 81 F.3d 969, 974 (10th Cir. 1996);
and McEvoy v. Shoemaker, 882 F.2d 463, 466 (10th Cir. 1989). These cases found internal
employment complaints were not matters of public concern, but assertions of potential illegal
conduct by government officials, whether their employer’s charter would be renewed, and
upcoming board elections were public concerns and thus protected speech. Brammer-Hoelter,
402 F.3d at 1206; Hom, 81 F.3d at 974; McEvoy, 882 F.3d at 466 (finding police officer’s letter
to city council complained of internal problems and mismanagement in police department, not

32

misconduct by officials). Mr. Tonjes’ allegations fall within the latter: the fatal firefight at the
Wirth residence was not merely an internal employment complaint but was a matter of public
concern.
Defendants also argue the Complaint fails to establish facts demonstrating the required
causal connection. Defendants recognize, however, that the element simply requires the
retaliation to be a “substantial” motivating factor for the demotion, not the sole cause. Doc. #30
(reply brief) at 18 (citing Cillo, 739 F.3d at 461). A plaintiff can assert a claim for First
Amendment retaliation by “showing that the protected activity was close in time to the adverse
action.” Colvin v. State Univ. Coll. at Farmingdale, No. 13–cv–3595 (SJF)(ARL), 2014 WL
2863224, at *20 (E.D.N.Y. Jun. 19, 2014). Moreover, a pleading alleges facts sufficient to assert
a plausible claim under the First Amendment based upon a “broad array” of circumstances that
include temporal proximity, intervening antagonism or retaliatory animus, inconsistencies in the
employer’s articulated reason for taking adverse action, or “any other evidence of record
sufficient to support the inference of causality.” Behne, 2014 WL 1689950, at *15.
Finally, Defendants Wegener and Hancock’s assert qualified immunity, but particularly
since Merrifield, the law in the Tenth Circuit clearly recognizes that public employees retain
their First Amendment right to associate for expressing speech on a matter of public concern. A
reasonable officer in the Sheriff’s Department would know that demoting a deputy, when
substantially motivated by retaliation for the deputy’s association with another who expressed an
opinion on the Wirth incident, would violate the deputy’s First Amendment rights. Defendants
Wegener and Hancock are free to raise this issue on a broader record, but the court concludes
that the second claim for relief withstands challenge under Rule 12(b)(6).

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C.

Plaintiff’s Due Process Liberty Interest Claim

The Fourteenth Amendment protects a plaintiff’s liberty interest to be free from adverse
employment action that “creates a false and defamatory impression” and thereby forecloses other
employment opportunities. To assert a viable deprivation of a liberty interest, Plaintiff must
come forward with evidence plausibly demonstrating the Defendants Wegener and the Sheriff’s
Office made: (1) a statement that impugned Mr. Tonjes’ good name, reputation, honor, or
integrity; (2) the statement was false or “gave a false impression;” (3) the statement was made
during the course of termination and foreclosed other employment opportunities; and (4) the
statement was publically disclosed. See, e.g., McDonald v. Wise, 769 F.3d 1202, 1212 (10th Cir.
2014) (citing Workman v. Jordan, 32 F.3d 475, 481 (10th Cir. 1994); Melton v. City of
Oklahoma City, 928 F.2d 920, 930 (10th Cir. 1991)). Defendants contend that Mr. Tonjes’ third
claim for relief must be dismissed because the Complaint fails to allege facts that would support
the first, second, or third elements of this claim.
The Complaint alleges that on February 29, 2016, Plaintiff Tonjes was told by Sheriff
Wegener that he was being demoted three levels because he allegedly had “yelled” at Corporal
Carrigan and Master Deputy Edward Goodman on some unspecified occasions. Although
Plaintiff denied that he had engaged in improper behavior toward either subordinate, Sheriff
Wegener “ignored Sgt. Tonjes’ rebuttal” and told him to report to work the next day as a patrol
officer. The Complaint also alleges that Defendant Wegener did not give Plaintiff Tonjes notice
of any allegations made against him and did not follow Sheriff Office policies that would have
allowed Mr. Tonjes an opportunity to appeal the demotion decision. On that same day, Plaintiff

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Tonjes resigned after concluding that “his working conditions had become intolerable and that it
was no longer reasonable for him to continue working for the Sheriff’s Office.”
The Complaint further asserts that on March 2, 2016, Sheriff Wegener told a Denver
news reporter that he had “made the decision to demote Sgt. Tonjes and that ‘it was related to the
handling of how the deputies responded [at the Wirth scene].’” The reporter subsequently
announced that “a Park County Sheriff Sargent was in the process of being demoted and then
resigned Monday over the tactics that lead [sic] to the Feb. 24 death of Cpl. Nate Carrigan.”
Complaint at ¶ 44. Plaintiff’s response brief focuses on Wegener’s statement to the reporter as
the basis for this claim.
In the oral argument, the parties and court discussed several issues with respect to this
claim, including whether Plaintiff Tonjes had to allege a literally false statement or if a statement
that gives a false impression suffices. In the court’s further research after the oral argument, the
Tenth Circuit clearly holds the latter. McDonald, 769 F.3d at 1212. In McDonald, the court
reversed the dismissal of a public employee’s liberty interest claim because a literally false
statement was not required.
The district court concluded that Mr. McDonald failed to plead
facts sufficient to satisfy Workman’s falsity prong. It determined
that Ms. Miller and Mayor Hancock’s statements were not false
because Mr. McDonald “was terminated because of ‘allegations of
serious misconduct.’” … We disagree. … Even if the Mayor only
stated that Mr. McDonald was fired because of allegations of
serious misconduct, his termination of Mr. McDonald due to the
allegations gives the false impression that Mr. McDonald did in
fact commit serious misconduct.

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Id. (second emphasis added, citing Melton, 928 F.2d at 930). Plaintiff Tonjes plausibly alleges
that Sheriff Wegener’s statement to the reporter gave a false impression that the fatalities and
injuries incurred in the Wirth incident were Mr. Tonjes’ fault.
However, Defendants are correct that the third element (statement made during the
course of termination and foreclosed other employment opportunities ) requires foreclosure of
other employment opportunities, and Mr. Tonjes does not allege such facts. At oral argument,
Mr. Tonjes argued this is not required because (in his view) he alleges the statement occurred in
the course of his demotion and constructive discharge. Although in some earlier cases the Tenth
Circuit “phrased th[e] third element disjunctively, it should have been phrased conjunctively.”
McDonald, 769 F.3d at 1212 n.3 (collecting cases). The Tenth Circuit has thus made clear that
foreclosure of employment opportunities is required, regardless of whether the defamatory
statement occurs in the course of demotion or discharge. This is because “[u]nder the Due
Process Clause, public employees have a liberty interest in their reputations, but only in the
context of their employment.” Coleman v. Ut. State Charter Sch. Bd., 673 F. App'x 822, 829
(10th Cir. 2016). 14 A plaintiff can satisfy this element by alleging facts to support he has “been
unable to find employment because of” the statement or media reports thereof. McDonald, 769
F.3d at 1212, n.3.
The only instance in the Complaint where Mr. Tonjes alleges Wegener’s statement
foreclosed employment opportunities is in the now-dismissed seventh claim for defamation: “As

14

A plaintiff could instead show a “termination based upon a publicized false charge of
sufficient opprobrium that would make the plaintiff an unlikely candidate for employment by a
future employer.” McDonald, 769 F.3d at n.4. See also Coleman, 673 F. App'x at 830–31. But
this theory appears limited to false statements charging dishonesty, immorality, serious felony,
manifest racism, serious mental illness, or the like. Melton v. City of Okla. City, 928 F.2d 920,
927 n.11 (10th Cir. 1991). Mr. Tonjes does not allege or argue such facts.
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a result of Defendant’s [Wegener’s] defamatory statements, Plaintiff Tonjes has suffered loss of
reputation and ability to find re-employment.” Complaint at ¶ 85. Assuming without deciding
that the now-dismissed Paragraph 85 can still support the third claim for relief, it is conclusory.
Because Mr. Tonjes does not allege facts to support that Wegener’s statement foreclosed other
employment opportunities, the court will dismiss the third claim. However, Mr. Tonjes may
move to amend the complaint if he can assert facts to support this element. See, e.g., Newton v.
Unified Gov't of Wyandotte Cty., No. 17–cv–2043–JWL, 2017 WL 2591523, at *3 (D. Kan. June
15, 2017).
D.

Defendant Sheriff’s Office Liability on 42 U.S.C. § 1983 Claims

The Sheriff’s Office argues that it cannot be liable under 42 U.S.C. § 1983 for a single
personnel decision because this is insufficient to show a policy or custom of the Sheriff’s Office
as required under Monell v. Department of Social Services of City of New York, 436 U.S. 658,
694 (1978). The U.S. Supreme Court
held in Monell … that a local government is liable under § 1983
for its policies that cause constitutional torts. These policies may
be set by … those whose edicts or acts may fairly be said to
represent official policy. A court's task is to identify those officials
… who speak with final policymaking authority for the local
governmental actor concerning the action alleged to have caused
the particular constitutional … violation at issue.
McMillian v. Monroe Cty., 520 U.S. 781, 784–85 (1997) (internal citations and quotation marks
omitted). See also Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). “Cities cannot
incur liability under § 1983 on a respondeat superior theory, but can be liable if a final
policymaker takes unconstitutional action. … Whether an individual is a final policymaker for
purposes of § 1983 liability is a legal issue to be determined by the court based on state and local

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law.” Vogt v. City of Hays, 844 F.3d 1235, 1251 (10th Cir.), cert. granted sub nom. City of Hays
v. Vogt, 138 S. Ct. 55 (2017) (internal citation and quotation marks omitted).
Defendants do not dispute that under Colorado law, Sheriff Wegener had final
policymaking authority for the Sheriff’s Office regarding discipline, demotion, and termination
of deputies. Nor do they dispute that Sheriff Wegener personally executed the demotion of
Plaintiff Tonjes and made the alleged statement to the news reporter. Defendants rely on
inapposite cases, in which the plaintiff did not sue a municipal entity for the decision of its final
policymaker, but rather attempted to argue a county board was responsible for the decisions of
the sheriff, a city council was responsible for a police chief’s actions, or a sheriff’s office was
responsible for an officer’s actions by deliberate indifference in training or supervision. See,
e.g., Isenbart v. Bd. of Cty. Comm’rs, No. 11–cv–03240–LTB–BNB, 2012 WL 4378269, *7 (D.
Colo. 2012); Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 406 (1997). Brown expressly
distinguishes such cases from § 1983 claims that allege a personal, direct action of the final
policymaker. But C.R.S. § 30–10–506 plainly makes the sheriff the final policymaker for the
Sheriff’s Office with respect to employment of deputies, and if the sheriff acted
unconstitutionally in those duties, the Sheriff’s Office can be held liable for his actions.
CONCLUSION
Because Mr. Tonjes plausibly alleges denial of due process property interest, violation of
First Amendment right to expressive association, breach of contract, and promissory estoppel,
the court DENIES the motion to dismiss the first, second, fourth and fifth claims for relief.
The court GRANTS the motion to dismiss only as to the third claim for relief (First
Amendment right of association). With respect to that claim, Plaintiff has leave to file a motion

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to amend the Complaint within 30 days of this order if he can allege facts that Sheriff Wegener’s
statement to the reporter foreclosed other employment opportunities.
DATED: January 4, 2018.
BY THE COURT:

s/_______________________
United States Magistrate Judge

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