Tavizon v. Villanueva et al
Filing
43
ORDER by Magistrate Judge Gregory B. Wormuth granting 28 Motion for Summary Judgment. (twr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RAYMOND TAVIZON,
Plaintiff,
v.
Civ. No. 16‐293 GBW/LAM
RAUL D. VILLANUEVA and
CHARLENE WEBB,
Defendants.
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
This matter comes before the Court on Defendants’ Motion for Summary
Judgment (doc. 28). Having reviewed the motion, the attendant briefing, and the
relevant law, and being otherwise fully advised, the Court will GRANT Defendants’
motion.
I.
BACKGROUND
This case stems from Plaintiff’s demotion from Lieutenant to Sergeant at the
Grant County Sheriff’s Department. Doc. 1 at 2‐4. In 2014, Plaintiff ran for Sheriff and
lost the election to Defendant Raul Villanueva. Id. at 3. In November 2015, Plaintiff was
demoted to Sergeant after he failed to obtain toxicology evidence in a high‐profile
criminal investigation. Id. at 3‐4. Plaintiff filed suit against Defendants asserting that
they violated his rights to free speech and political association under the First and
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Fourteenth Amendments to the United States Constitution by retaliating against
Plaintiff for his political activity. Id. at 4‐5.1 On September 16, 2016, Defendants filed a
Motion for Summary Judgment on the basis that they are entitled to qualified
immunity, and, in the alternative, that Plaintiff has failed to sufficiently allege that
Defendants violated his constitutional rights. See generally doc. 28.
II.
STANDARD OF REVIEW
Summary judgment is appropriate where the moving party demonstrates that
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden
of “show[ing] ‘that there is an absence of evidence to support the nonmoving party’s
case.’” Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991)
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Once the movant meets this
burden, the non‐moving party is required to designate specific facts showing that “there
are . . . genuine factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex, 477 U.S. at 324.
The Court must resolve reasonable inferences and doubts in favor of the non‐
moving party, and construe evidence in the light most favorable to the non‐moving
In his Complaint, Plaintiff also states that Defendants deprived him of “Constitutional . . . due process
guarantees[.]” Doc. 1 at 4. However, Plaintiff clarified in his Response to Defendants’ Motion for
Summary Judgment that “Plaintiff never asserted a due process claim in his Complaint.” Doc. 32 at 19.
Therefore, any due process claim has been waived by Plaintiff and will not be addressed by the Court.
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party. See Hunt v. Cromartie, 526 U.S. 541, 551‐54 (1999). Nonetheless, at the summary
judgment stage, “a plaintiffʹs version of the facts must find support in the record.”
Thomson v. Salt Lake County, 584 F.3d 1304, 1312 (10th Cir. 2009). As with any fact
asserted by a party in a summary judgment motion, the plaintiff must point the Court
to such support by “citing to particular parts of materials in the record . . . .” Fed. R.
Civ. P. 56(c)(1)(A).
However, summary judgment motions based upon the defense of qualified
immunity are reviewed differently from other summary judgment motions. The
defense of qualified immunity “protects governmental 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.’” Weise v. Casper,
593 F.3d 1163, 1166 (10th Cir. 2010) (quoting Pearson v. Callahan, 555 U.S. 223, 231
(2009)). When a defendant asserts summary judgment based on qualified immunity,
the plaintiff must demonstrate “(1) that the official violated a statutory or constitutional
right[] and (2) that the right was “clearly established” at the time of the challenged
conduct.” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al–
Kidd, 563 U.S. 731, 735 (2011)). “[T]he record must clearly demonstrate the plaintiff has
satisfied his heavy two‐part burden; otherwise, the defendants are entitled to qualified
immunity.” Felders ex rel. Smedley v. Malcom, 755 F.3d 870, 877‐78 (10th Cir. 2014). The
Court may address the two prongs of the test in any order. Pearson, 555 U.S. at 236.
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Determining whether the allegedly violated right was “clearly established”
depends on whether “the contours of the right [were] sufficiently clear that a reasonable
official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987). “Ordinarily, in order for the law to be clearly
established, there must be a Supreme Court or Tenth Circuit decision on point, or the
clearly established weight of authority from other courts must have found the law to be
as the plaintiff maintains.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010) (quotation
omitted). While the plaintiff need not locate “a case directly on point,” nevertheless
“existing precedent must have placed the statutory or constitutional question beyond
debate.” Ashcroft, 563 U.S. at 741.
In analyzing any motion for summary judgment, the Court must keep in mind
three principles. First, the Court’s role is not to weigh the evidence, but to assess the
threshold issue of whether a genuine issue exists as to material facts requiring a trial.
See Liberty Lobby, 477 U.S. at 249. “An issue is ‘genuine’ if there is sufficient evidence on
each side so that a rational trier of fact could resolve the issue either way. An issue of
fact is ‘material’ if under the substantive law it is essential to the proper disposition of
the claim.” Thom v. Bristol Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (internal
citation omitted).
Second, the Court must resolve all reasonable inferences and doubts in favor of
the non‐moving party, and construe all evidence in the light most favorable to the non‐
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moving party. See Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014); see also Riggins v.
Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009) (noting that courts generally “accept the
facts as the plaintiff alleges them” when considering whether a plaintiff has overcome a
defendant’s assertion of qualified immunity at the summary judgment stage).
However, “a plaintiff’s version of the facts must find support in the record” at the
summary judgment stage. Thomson v. Salt Lake Cty., 584 F.3d 1304, 1312 (10th Cir. 2009).
Third, the court cannot decide any issues of credibility. See Liberty Lobby, 477 U.S.
at 255. “[T]o survive the . . . motion, [the non‐movant] need only present evidence from
which a jury might return a verdict in his favor.” Id. at 257. All material facts set forth
in the motion and response which are not specifically controverted are deemed
undisputed. D.N.M.LR‐Civ. 56.1(b).
III.
UNDISPUTED FACTS
1. Plaintiff began his employment with the Grant County Sheriff’s Department as
Deputy Sheriff in 1997 and held numerous positions, including Lieutenant.
Doc. 28 at 2; doc. 32 at 1.
2. Defendant Raul Villanueva is the Sheriff of Grant County, and has served as
Sheriff since 2010. Doc. 28 at 2; doc. 32 at 1.
3. Plaintiff does not know exactly when Defendant Villanueva learned that
Plaintiff intended to run for Sheriff, but suspects that Defendant Villanueva
knew of his intention to run as early as 2011. Doc. 28 at 2; doc. 28‐1 at 5; doc. 32
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at 2‐3, 9.
4. Plaintiff began openly discussing his plan to run for Sheriff with members of
the community in January or February of 2012. Doc. 28 at 2; doc. 32 at 2.
5. In April 2012, Defendant Villanueva demoted Plaintiff and placed him on two
years’ probation for allegedly failing to perform his job. Doc. 32‐1 at 8‐9.
6. On appeal, the County Manager reversed Defendant Villanueva’s decision and
reduced Plaintiff’s punishment to a three‐day suspension. Id. at 9‐10.
7. In August 2012, Defendant Villanueva again proposed that Plaintiff be
demoted for failing to perform his job. Id. at 11.
8. On appeal, the County Manager again reversed Defendant Villanueva’s
decision and determined that no disciplinary action would be taken against
Plaintiff. Id. at 12.
9. In January 2013, Plaintiff was investigated for money that was missing out of
the evidence vault despite not being in charge of inventory of the vault. Doc.
32 at 9.
10. Defendant Villanueva recommended that Plaintiff be terminated as a result of
the evidence vault inventory issue. Doc. 32 at 9.
11. During the appeals process, the County Manager determined that Plaintiff had
not taken the money and reinstated him. Doc. 32 at 9; doc. 38 at 4.
12. In 2014, Plaintiff went to the Republican Party for endorsement of his
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candidacy for Sheriff. Doc. 32 at 9.
13. Defendant Villanueva was aware of Plaintiff’s candidacy for Sheriff by March
2014, when Plaintiff filed paperwork with the County declaring that he was
running for Sheriff as a Republican. Doc. 28 at 3; doc. 32 at 9.
14. There were no news accounts of Plaintiff’s intention to run for Sheriff before
March 2014. Doc. 28 at 3; doc. 32 at 3.
15. Plaintiff did not author any editorials about his candidacy before March 2014.
Doc. 28 at 3; doc. 32 at 3.
16. Plaintiff did not run any advertising before March 2014. Doc. 28 at 3; doc. 32 at
3.
17. Plaintiff did not directly tell Defendant Villanueva that he was going to run
before March 2014. Doc. 28 at 3; doc. 32 at 3.
18. During the 2014 campaign, Plaintiff and Defendant Villanueva were guests on
a radio show informing the community about the candidates. Doc. 32 at 9.
19. During the campaign, Plaintiff’s platform included that he was a conservative
Republican who was pro‐Constitution. Doc. 32 at 9.
20. Defendant Charlene Webb became County Manager in September 2014. Doc.
28 at 7; doc. 32 at 8.
21. Defendant Villanueva won the election in November 2014. Doc. 28 at 3; doc. 32
at 4.
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22. Plaintiff claims that in November 2014, he was called into Defendant
Villanueva’s office to discuss comments made by Plaintiff or his campaign staff
alleging that Defendant Villanueva had failed to follow procedures on “reverse
911 calls” for the community when a prisoner had escaped from prison. Doc.
32 at 10.
23. At that time, Plaintiff claims that Defendant Villanueva told Plaintiff that he
was being reassigned to evidence custodial work and work with sex offenders,
and stated that he was not happy with Plaintiff about the campaign statements.
Doc. 32 at 7, 10; doc. 38 at 3.
24. Defendant Villanueva reassigned Plaintiff as the Lieutenant in charge of
Criminal Investigations in January 2015. Doc. 38 at 3; doc. 38‐1 at 2.
25. On September 10, 2015, Plaintiff was called by the Santa Clara Police
Department to assist their department with investigating the case of a boy that
had allegedly been hit by a truck. Doc. 32 at 10; doc. 38 at 4‐5.
26. Initially, the Santa Clara Police Department was investigating the incident, as
the State Police declined to take over the investigation. Doc. 28 at 3; doc. 32 at 4.
27. Plaintiff had discretion to make the decision to take over the investigation, and
such decision is not required to be reviewed by any superior. Doc. 28 at 4; doc.
32 at 4.
28. Plaintiff made the decision to take over the investigation on behalf of the Grant
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County Sheriff’s Department. Doc. 28 at 3‐4; doc. 32 at 4.
29. Plaintiff immediately dispatched to the scene and arrived an hour and a half
after the incident had occurred. Doc. 32 at 10; doc. 38 at 4‐5.
30. Plaintiff was informed that the suspects had not been secured during the hour‐
and‐a‐half period between the incident and his arrival. Doc. 32 at 10; doc. 38 at
4‐5.
31. The investigation involved a minor child named Lawrence Grijalva, III, who
was struck by a vehicle driven by his father, Lawrence Grijalva, Jr. Doc. 28 at 3;
doc. 32 at 4.
32. According to the investigation, the father, Mr. Grijalva, Jr., had arrived home at
around 5:00 p.m. to pick up his cousin, Jessie Zazueta. Doc. 28 at 4; doc. 32 at 4.
33. Mr. Grijalva, Jr., and Mr. Zazueta then drove away from the home, and it is
suspected that at some point Mr. Grijalva, Jr., ran over his son with his vehicle.
Doc. 28 at 4; doc. 32 at 4.
34. By the time of his interviews with Mr. Grijalva, Jr., and Mr. Zazueta at about
7:00 p.m. on September 10, 2015, Plaintiff had information that Mr. Grijalva, Jr.,
was the driver of the red truck that was suspected of running over the child.
Doc. 28 at 4; doc. 32 at 5.
35. After the incident, Mr. Grijalva, Jr., stated that he had gone to Walmart and did
not know his son had been hit until he received a phone call. Doc. 32 at 10; doc.
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38 at 4‐5.
36. Mr. Grijalva, Jr., returned home and was not secured until Plaintiff arrived at
the scene and took him back to the Grant County Sheriff’s Office (GCSO) for
questioning. Doc. 32 at 10; doc. 38 at 4‐5.
37. Plaintiff believed that there was no probable cause to obtain a warrant for a
toxicology test because the suspect had not been secured for an hour and a half
after the accident and Plaintiff did not smell alcohol or see any indication that
the suspect was impaired. Doc. 32 at 11; doc. 38 at 4‐5.
38. Plaintiff made the decision not to seek a warrant to obtain any drug, alcohol, or
toxicology test on the father to determine sobriety or drug influence. Doc. 28 at
5; doc. 32 at 6.
39. Plaintiff knew that the lack of a toxicology test could be an issue in pursuing
the case, and later admitted that it would have been beneficial to have a
toxicology test. Doc. 32 at 4, 7; doc. 28 at 6.
40. At about 8:15 p.m. on September 10, 2015, after the interviews with Mr.
Grijalva, Jr., and Mr. Zazueta, Plaintiff had a conversation with Sergeant Jose
Sanchez. Doc. 28 at 5; doc. 32 at 6.
41. Sergeant Sanchez indicated that “I’ll bet they’re going to raise hell because we
didn’t do a toxicology.” Doc. 28 at 5; doc. 32 at 6.
42. Plaintiff responded to Sergeant Sanchez by stating: “They didn’t take control of
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this guy. Nobody observed him . . . and I made a decision and I’m sticking
with it.” Doc. 28 at 5; doc. 32 at 6.
43. When Plaintiff called an Assistant District Attorney the next morning,
September 11, 2015, Plaintiff believed the Assistant District Attorney agreed
with his decision and his reasons for not seeking a toxicology test. Doc. 28 at 5;
doc. 32 at 6, 11; doc. 38 at 4‐5.
44. On September 14, 2015, a different Assistant District Attorney complained to
Defendant Villanueva about Plaintiff’s failure to obtain a toxicology test from
the suspect. Doc. 28 at 5; doc. 32 at 6‐7.
45. In November 2015, Plaintiff was placed under investigation for his handling of
the high‐profile crime. Doc. 28 at 3; doc. 32 at 4.
46. Defendant Villanueva’s life‐long friend at the GCSO conducted the internal
investigation of Plaintiff’s handling of the incident, and Defendant Villanueva
relied on the investigation to determine discipline for Plaintiff. Doc. 32 at 11;
doc. 38 at 5.
47. Defendant Villanueva proposed that Plaintiff be demoted. Doc. 32 at 11; doc. 38
at 5.
48. Grant County has an Employee Manual which provides Employee Grievance
procedures including a review by the Department Supervisor (“Step 1”) and an
appeal to the County Manager (“Step 2”). Doc. 28 at 5‐6; doc. 32 at 7.
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49. Plaintiff had a Step 1 meeting with Defendant Villanueva on October 27, 2015,
in which Plaintiff brought a shop steward for the local union, Michael Burns, as
his representative. Doc. 28 at 6; doc. 32 at 7.
50. On November 4, 2015, Defendant Villanueva issued his decision demoting
Plaintiff from Lieutenant to Sergeant. Doc. 28 at 6; doc. 32 at 8.
51. Pursuant to Step 2 of the procedures, Plaintiff then appealed the decision to the
County Manager, Defendant Webb. Doc. 28 at 6; doc. 32 at 8.
52. Plaintiff had an appeal hearing with Defendant Webb on November 23, 2015.
Doc. 28 at 6; doc. 32 at 8.
53. The hearing before Defendant Webb lasted about an hour and a half. Doc. 28 at
6; doc. 32 at 8.
54. Defendant Webb upheld the demotion of Plaintiff on December 2, 2015, and
Plaintiff was demoted from Lieutenant to Sergeant. Doc. 28 at 3, 7; doc. 32 at 4,
8.
55. Plaintiff’s rate of pay did not change as a result of the demotion. Doc. 28 at 7;
doc. 32 at 8.
56. After Plaintiff was demoted, his job duties increased. Doc. 32 at 11; doc. 38 at 5.
57. Plaintiff testified that he believes his demotion was retaliatory because he ran
against the Sheriff in the 2014 election. Doc. 28 at 7.
58. Plaintiff is still employed with the Grant County Sheriff’s Department as a
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Sergeant. Doc. 28 at 2; doc. 32 at 1.
ANALYSIS
IV.
Plaintiff claims that Defendants violated his rights to free speech and political
association under the First and Fourteenth Amendments to the United States
Constitution by retaliating against Plaintiff for his political activity of running for
Sheriff. Doc. 1 at 4‐5. Defendants argue that they are entitled to summary judgment on
both counts on the basis of qualified immunity as well as on the merits of the case. Doc.
28 at 1.
Because Defendants have asserted a qualified immunity defense, Plaintiff’s
“heavy two‐part burden” arises to establish both that Defendants violated his
constitutional rights and that such rights were “clearly established” at the time of the
violation. Felders, 755 F.3d at 877‐78. “For a constitutional right to be clearly
established, ‘[t]he contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.’” Wilson v. Montano,
715 F.3d 847, 852 (10th Cir. 2013) (alteration in original) (quoting Anderson v. Creighton,
483 U.S. 635, 640 (1987)).
The Tenth Circuit Court of Appeals has found that “the law has been clearly
established since 1968 that public employees may not be discharged in retaliation for
speaking on matters of public concern, absent a showing that the government
employer’s interest in the efficiency of its operations outweighs the employee’s interest
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in the speech.” Andersen v. McCotter, 100 F.3d 723, 729 (10th Cir. 1996) (citing Pickering,
391 U.S. at 568). As explained further below, however, regardless of whether the
relevant law is clearly established, Plaintiff has failed to meet his burden under the
qualified immunity prong requiring him to demonstrate that Defendants violated any
of his statutory or constitutional rights. Thus, for the following reasons, the Court finds
that Defendants are entitled to summary judgment on the basis of qualified immunity.
A. Freedom of Speech
Plaintiff argues that Defendants violated his freedom of speech under the First
and Fourteenth Amendments by demoting him in retaliation for running for Sheriff and
for certain political speech made by Plaintiff or his campaign staff. Doc. 32 at 13‐15. The
Tenth Circuit Court of Appeals has found that campaigning against a superior can
implicate protected speech under the First Amendment where the campaigning entails
expression of political affiliation and beliefs. See, e.g., Jantzen v. Hawkins, 188 F.3d 1247,
1252, 1257 (10th Cir. 1999). To analyze a free speech retaliation claim under the First
Amendment, courts apply the five‐step test of Pickering v. Board of Ed., 391 U.S. 563
(1968) and Connick v. Myers, 461 U.S. 138 (1983). See Jantzen, 188 F.3d at 1257. The Tenth
Circuit has summarized the test as follows:
1. Whether the speech in question involves a matter of public concern.
2. If so, we must weigh the employee’s interest in the expression against the
government employer’s interest in regulating the speech of its employees so that
it can carry on an efficient and effective workplace.
3. Employee must show the speech was a substantial factor driving the
challenged governmental action.
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4. If so, can the employer show that it would have taken the same employment
action against the employee even in the absence of the protected speech[?]
Id. The first two steps are questions of law while the remaining two steps are questions
of fact. See Jantzen, 188 F.3d at 1257 (citing Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d
1265, 1271 (10th Cir. 1998)).
A matter is of public concern, and therefore entitled to First Amendment
protection, if it is “of interest to the community, whether for social, political, or other
reasons.” Lytle v. City of Haysville, 138 F.3d 857, 863 (10th Cir. 1998) (citing Connick, 461
U.S. at 145‐49). If the matter is of merely personal interest to the government employee,
then the speech is not protected by the First Amendment. Horstkoetter, 159 F.3d at 1271.
Plaintiff’s candidacy for Sheriff “undoubtedly relates to matters of public concern.”
Jantzen, 188 F.3d at 1257 (citing Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
And for the purposes of this analysis, the Court will assume that Plaintiff’s interest in
the expressions associated with his candidacy outweigh the government employer’s
interest in regulating the speech of its employees so that it can carry on an efficient and
effective workplace.2
However, “[t]o withstand summary judgment at step three . . . an employee must
produce evidence linking the employer’s action to the employee’s speech.” Maestas v.
2
Defendants argue that “there is no genuine dispute of fact as to whether {Plaintiff’s] interest outweighs
the County’s interest in complete investigation of high profile incidents within the community… .” Doc.
28 at 10. However, Defendants’ argument is misplaced because it begs the question. The “speech” to
which the Pickering analysis must be applied is that associated with Plaintiff’s candidacy. The dispute
over Plaintiff’s failure to properly conduct the Grijalva investigation is only relevant in steps 3 and 4 of
the Pickering analysis where causation and pretext are considered.
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Segura, 416 F.3d 1182, 1188 (10th Cir. 2005). Moreover, it is Plaintiff’s burden to meet
this element because he must establish the constitutional violation to survive a qualified
immunity defense. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001). It is here that
Plaintiff’s free speech claim falters. Plaintiff alleges that Defendants demoted him in
November 2015 after he ran for Sheriff in 2014. To support his allegation that running
for Sheriff was a substantial or motivating factor, Plaintiff provides two pieces of
evidence: (1) in November 2014, Defendant Villanueva criticized Plaintiff for certain
political statements made by either Plaintiff or his campaign staff during the election;
and (2) Defendant Villanueva attempted on three different occasions to demote or
terminate Plaintiff between April 2012 and January 2013. See doc. 32 at 14‐16, 18; doc. 32‐
1 at 8‐12.
These pieces of evidence are insufficient to support a reasonable inference that
his November 2015 demotion was the result of his campaign for Sheriff. Defendant
Villanueva’s expression of dissatisfaction with one of the claims made by Plaintiff in the
campaign immediately after the election did not include any express or implied threat
to Plaintiff. Given that the comment was made twelve months before Plaintiff’s
demotion and the lack of any similar comments in the interim, this isolated comment is
very weak evidence of causation. See e.g., Anderson v. Coors Brewing Co., 181 F.3d 1171,
1179 (10th Cir. 1999) (“[W]e have held that a one and one‐half month period between
protected activity and adverse action may, by itself, establish causation. By contrast, we
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have held that a three‐month period, standing alone, is insufficient to establish
causation.”).
The attempted discipline prior to the election is even less probative on the issue
of causation. First, Defendant Villanueva last recommended discipline against Plaintiff
in January 2013. This recommendation occurred almost two years before the demotion
relevant here. This significant time gap is especially telling considering the rapid
succession of Defendant Villanueva’s other attempts at adverse employment action
against Plaintiff, and the close proximity between those attempts and Defendant
allegedly learning that Plaintiff would oppose him in the election. See doc. 32 at 14.
Moreover, any argument for Defendant Villanueva’s unbroken malevolence toward
Plaintiff since the election is spoiled by the fact that, in January 2015, Defendant
Villanueva reestablished Plaintiff as the Lieutenant in charge of Criminal Investigations.
See doc. 38‐1 at 2.
Second, the underlying circumstances were very different. Under Plaintiff’s
theory, in 2012 and 2013, Defendant Villanueva viewed Plaintiff as an electoral rival and
threat. In fact, the tension which naturally arises from such a competition means that
Plaintiff likely could have been terminated on that basis alone. See Jantzen, 188 F.3d at
1257‐58 (It is a “reasonable prediction that when a subordinate runs for office against
his or her boss, such a candidacy risks undermining that office’s efficient
performance.”). In contrast, the November 2014 demotion occurred well after
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Defendant Villanueva had successfully defeated Plaintiff’s challenge. The significant
passage of time between the earlier discipline recommendations, the lack of any
disciplinary efforts in the interim, and the material difference in the underlying
circumstances all dramatically undermine these incidents as evidence of causation for
the November 2014 demotion. See e.g., Maestas, 416 F.3d at 1189 (“[E]vidence such as a
long delay between the employee’s speech and challenged conduct . . . tend[s] to
undermine any inference of retaliatory motive and weaken the causal link[.]”).
The fatal flaw in Plaintiff’s evidence, however, arises from the fact that
Defendant Villanueva was not the final decisionmaker regarding Plaintiff’s demotion.
It is undisputed that the County Manager had to approve any termination or demotion
of deputy sheriffs such as Plaintiff. Doc. 28 at 5‐6; doc. 32 at 7. Not only did the Grant
County Manager have the authority in theory, he or she exercised it in practice. In fact,
the Plaintiff prevailed upon the County Manager to reject all three of Defendant
Villanueva’s adverse recommendations in 2012 and 2013. See doc. 32 at 14. These
rejections show both that the final authority rested with the County Manager and that
the County Manager acted independently from the Sheriff. As he had before, Plaintiff
challenged Defendant Villanueva’s November 2015 demotion recommendation to the
County Manager, a position now occupied by Defendant Webb. After considering the
matter, Defendant Webb gave final approval to the demotion. Thus, in order for
Plaintiff to establish the requisite causation, he must show that Defendant County
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Manager Webb’s approval was motivated by Plaintiff’s speech. But Plaintiff fails to
provide any evidence suggesting that Defendant Webb’s adverse employment decision
in 2015 was motivated by Plaintiff running for Sheriff against Defendant Villanueva, or
evidence indicating that Defendant Webb had any retaliatory motive at all. See generally
doc. 32. Plaintiff’s sole response to this problem is his claim that Defendant Villanueva
“finally got a County Manager that stuck with him.” Doc. 32‐1 at 28. Yet Plaintiff offers
no evidence to support the proposition that Defendant Webb was any less independent
of Defendant Villanueva than her predecessor. Consequently, Plaintiff has failed to
present sufficient evidence from which a reasonable jury could conclude that his speech
– either statements made during the campaign or his candidacy itself ‐‐ was a
substantial factor driving his demotion.
Finally, even if the Court were to find that Plaintiff’s protected activity was a
substantial or motivating factor in his demotion, Plaintiff has failed to demonstrate that
Defendants would not have taken the same employment action against Plaintiff even in
the absence of the protected speech, as required by the fourth step of the
Pickering/Connick test. See Jantzen, 188 F.3d at 1257. Defendants argue that Plaintiff was
demoted because he made certain mistakes in conducting the investigation of a high‐
profile criminal investigation. See doc. 28 at 14. It is undisputed that Plaintiff failed to
seek a warrant to obtain a toxicology test in the high‐profile criminal investigation two
months before he was demoted. Doc. 28 at 5; doc. 32 at 6. While Plaintiff admits that he
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did not obtain the toxicology test, he argues that this was the correct decision and that it
therefore cannot be the basis for his demotion. Doc. 32 at 18. However, Plaintiff’s
decision not to follow certain procedures in an investigation, whether his decision was
appropriate or not, is a legitimate reason for his demotion that does not implicate his
constitutional rights. See Pastran v. K‐Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000)
(“‘[T]he pertinent question in determining pretext is not whether the employer was
right to think the employee engaged in misconduct, but whether that belief was
genuine or pretextual.’” (citation omitted)); Stover v. Martinez, 382 F.3d 1064, 1076 (10th
Cir. 2004) (“[I]n evaluating pretext, the relevant inquiry is not whether [the employer’s]
proffered reasons were wise, fair[,] or correct, but whether [the employer] honestly
believed those reasons and acted in good faith upon those beliefs”) (internal quotations
and citation omitted). In her final grievance decision approving Plaintiff’s demotion,
Defendant Webb “concluded that [Plaintiff’s] command decisions made upon adoption
of the [high‐profile criminal] case and investigation were not reasonable and that
[Plaintiff] failed to meet the standards required for a Criminal Investigation
Lieutenant”).3 Doc. 32‐3 at 1. As noted above, Plaintiff has presented no evidence that
The Court also notes that the approved discipline – demotion to from Lieutenant to Sergeant with no
loss of pay – follow logically from Defendant Webb’s findings – that Plaintiff made poor command
decisions. One would think that, if Defendant Villanueva and Defendant Webb were merely using the
Grijalva episode as a pretext to punish Plaintiff for his political speech, the adverse action would have
been significantly more severe, such as termination.
3
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Defendant Webb was motivated by a desire to punish him for campaigning against
Defendant Villanueva or that she was controlled by Defendant Villanueva.4
In short, it is undisputed that Defendant Webb had complete authority to review
Defendant Villanueva’s recommendation of demotion, and Defendant Webb concluded
that Plaintiff failed to properly conduct a high‐profile investigation. There is no
evidence that Defendant Webb’s conclusions were a pretext for unconstitutional
punishment. Consequently, Plaintiff has failed to present sufficient evidence from
which a reasonable jury could find in his favor on step four of the Pickering/Connick test.
Therefore, summary judgment in favor of Defendants is appropriate as to
Plaintiff’s freedom of speech claim.
B. Freedom of Association
Plaintiff also argues that Defendants violated his freedom of association under
the First and Fourteenth Amendments by demoting him in retaliation for running for
Sheriff. Doc. 1 at 4‐5. The Supreme Court has extended the protection of freedom of
association to public employees through a line of cases beginning with Elrod v. Burns,
427 U.S. 347 (1976) and Branti v. Finkel, 445 U.S. 507 (1980). “The First Amendment
generally prohibits government officials from dismissing or demoting an employee
because of the employee’s engagement in constitutionally protected political activity.”
While it does not address the issue of pretext given the involvement of Defendant Webb, Plaintiff does
argue that “[i]t was not until [Defendant Villanueva] stepped in[] that Plaintiff was investigated for
allegedly failing to completely investigate the incident.” Doc. 32 at 18‐19. Yet Plaintiff himself anticipated
that the lack of a toxicology test would be an issue in the case, and even contacted a District Attorney due
to his concerns about that issue. Doc. 32 at 4, 6.
4
21
Heffernan v. City of Paterson, N.J., 136 S. Ct. 1412, 1416 (2016) (citing Elrod and Branti).
Public employees are protected under the First Amendment “from discrimination based
on their political beliefs, affiliation, or non‐affiliation unless their work requires political
allegiance.” Snyder v. City of Moab, 354 F.3d 1179, 1184 (10th Cir. 2003) (citation
omitted).
To defeat summary judgment on his claim that Defendants violated his right to
freedom of association, Plaintiff must demonstrate “a genuine dispute of fact that (1)
political affiliation and/or beliefs were ‘substantial’ or ‘motivating’ factors” behind [his
demotion]; and (2) [his] employment position did not require political allegiance.”
Barker v. City of Del City, 215 F.3d 1134, 1138 (10th Cir. 2000) (citing Jantzen, 188 F.3d at
1251). “Political patronage need not be the sole reason for an employee’s discharge, it
need only constitute a substantial or motivating factor.” Gann v. Cline, 519 F.3d 1090,
1093 (10th Cir. 2008). Once a plaintiff proves political patronage was a substantial or
motivating factor behind his dismissal, the burden of persuasion shifts to the defendant
to prove, as an affirmative defense, that the discharge would have occurred regardless
of any discriminatory political motivation. Id.
Plaintiff first argues that in running for Sheriff against Defendant Villanueva,
Plaintiff was exercising his right to political patronage. Doc. 32 at 13‐15. In support of
his argument, Plaintiff cites the unpublished decision of Edwards‐Flynn v. Yara, No. CIV
08‐0186 JB/ACT, 2009 WL 1563375, at *5 (D.N.M. May 18, 2009), objections overruled, No.
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CIV. 08‐0186 JB/ACT, 2010 WL 624086 (D.N.M. Jan. 26, 2010). The plaintiff in Yara
alleged that the defendant interfered with her right to run for public office by
incorrectly certifying her to run in the wrong ward and then failing to timely correct the
mistake. Id. at *1. The court found that “the right to fairly run for political office
without being discriminated against based upon political beliefs or associations is
protected by the First Amendment and the equal protection clause of the Fourteenth
Amendment.” Id. at *5. The court concluded that “allegations that a state officer or
agency purposefully kept a candidate from running for public office by violating state
election laws or imposing discriminatory ballot restrictions because the officer
disagreed with the candidate’s political views states a cause of action for violation of the
First Amendment and of the equal‐protection component of the Fourteenth
Amendment.” Id.
Unlike in Yara, Plaintiff makes no claim that Defendants interfered with his
ability to run for office. See generally doc. 1. Rather, he admits that he was able to run
for Sheriff but claims that Defendants retaliated against him for his actions a year after
the election. See generally id. Thus, the Court finds that this case is more factually
analogous to Jantzen, in which a deputy sheriff ran a campaign against the incumbent
sheriff and was immediately fired. 188 F.3d at 1250. The Tenth Circuit Court of
Appeals found that “[g]iven that the only factor driving [the plaintiff’s] termination was
his candidacy qua candidacy, [the plaintiff] has put forth no evidence that he was in any
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way terminated for ‘supporting or affiliating with a particular political party.’” Id. at
1252 (quoting Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996)). The Court
therefore affirmed the lower court’s grant of summary judgment against the plaintiff on
the basis that “[t]he right to political affiliation does not encompass the mere right to
affiliate with oneself.” Id. This reasoning is in line with courts in other circuits. See,
e.g., Carver v. Dennis, 104 F.3d 847, 850 (6th Cir. 1997) (no violation of the plaintiff’s
freedom of association rights where she “was discharged solely because she announced
her candidacy against [the defendant] for [the defendant’s] office”); Wallace v. Benware,
67 F.3d 655, 661 (7th Cir. 1995) (finding that a sheriff could have dismissed or demoted
the deputy who ran against him without violating the First Amendment). Therefore,
the Court finds that there is no First Amendment protection against retaliation
motivated solely by an employee’s candidacy for office against his superior.
Plaintiff argues that his claim is not defeated by the holding in Jantzen because he
was being punished not just due to his candidacy but also his association with the
Republican Party. Doc. 32 at 14‐15. Plaintiff presents no evidence to support this
theory. Indeed, Plaintiff ran as a candidate of the Republican Party. But to establish a
claim that Defendant Villanueva’s alleged retaliation was based on Plaintiff’s party
affiliation as opposed to his candidacy qua candidacy, Plaintiff must show Defendant
Villanueva harbored some animosity toward Republicans. However, there is no
evidence that Defendant Villanueva made any negative comments about the
24
Republican Party, Plaintiff’s affiliation with the Republican Party, or Plaintiff’s broader
political views. In fact, Plaintiff has not demonstrated (or even alleged) that his act of
requesting the endorsement of the Republican Party was the first time he had associated
with the party. See generally docs. 1, 32. Lacking such evidence, no reasonable jury
could conclude that the alleged retaliation which followed his candidacy was based
upon his political party versus the candidacy itself.
Even without this deficiency, Plaintiff’s freedom of association claim suffers from
the same flaws as his freedom of speech claim. First, for the same reasons explained
above (see supra pp. 16‐17), there is insufficient circumstantial evidence that Plaintiff’s
actions or associations surrounding the election were substantial or motivating factors
in Defendants’ decision to demote him. Second, the final decisionmaker was Defendant
Webb, and there is no evidence that she was motivated to punish Plaintiff for running
against Defendant Villanueva or was otherwise controlled by Defendant Villanueva.
See supra pp. 18.
Jantzen forecloses Plaintiff’s association claim based upon his candidacy. With
respect to an association claim based upon political affiliation, Plaintiff has failed to
raise a genuine issue of material fact that his political affiliation was a substantial or
motivating factor in Defendants’ decision to demote him. As such, his association claim
is subject to dismissal.
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V.
CONCLUSION
For the foregoing reasons, the Court finds that Plaintiff has failed to raise any
genuine issue of material fact that Defendants violated his statutory or constitutional
rights be demoting him from Lieutenant to Sergeant. Therefore, Defendants’ Motion for
Summary Judgment on the Basis of Qualified Immunity (doc. 28) is GRANTED.
IT IS SO ORDERED.
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
Presiding by consent
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