Hartvigsen v. Perry City et al
Filing
34
MEMORANDUM DECISION that the court can find no violations of Mr. Hartvigsens federal civil rights. This case is dismissed without prejudice. Signed by Judge Tena Campbell on 04/12/2012. (asp)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
JAMES HARTVIGSEN,
ORDER AND
MEMORANDUM DECISION
Plaintiff,
v.
Case No. 1:10-cv-148-TC
PERRY CITY, et al.,
Defendants.
James Hartvigsen filed suit against Perry City and a number of public officials alleging
that Defendants had violated his civil rights, under 42 U.S.C. § 1983. Mr. Hartvigsen claims that
Defendants denied him work and retirement benefits as an animal control officer, limited the
number of hours he could work each week, and eventually terminated his employment with the
City. He also alleges that the City failed to follow its personnel policy, which caused Mr.
Hartvigsen financial detriment. Defendants have filed a motion to dismiss, claiming that Mr.
Hartvigsen fails to state a claim against them upon which relief may be granted (Dkt. No. 19).
Because the court agrees with Defendants, the motion is GRANTED.
ANALYSIS
Motion to Dismiss Standard
When reviewing a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which
relief may be granted, the court presumes the truth of all well-pleaded facts in the complaint. Tal
v. Hogan, 453 F.3d 1244, 1252 (2006), cert. denied, 127 S. Ct. 1334 (2007); Mitchell v. King,
537 F.2d 385, 386 (10th Cir. 1976). But although all reasonable inferences must be drawn in the
non-moving party’s favor, Tal, 453 F.3d at 1252, a complaint will only survive a motion to
dismiss if it contains “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) quoted in Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Accordingly, the court construes all of the allegations in the light most favorable to Mr.
Hartvigsen, and assumes that the following facts are true for the purposes of deciding the
motion.1 Mr. Hartvigsen was hired as an animal control officer for Perry City and worked April
2002 until September 2007. During this time, Mr. Hartvigsen’s hours increased so that he was
working an average of 21.19 hours a week between July 2004 and July 2006. Mr. Hartvigsen did
not receive retirement benefits for his work, nor did he receive sick-leave, vacation pay, or
holiday pay. When Mr. Hartvigsen requested that the City grant him these work benefits, either
the City or Mayor Jerry Nelson responded by cutting Mr. Hartvigsen’s hours to 15 a week.
Eventually, the City terminated Mr. Hartvigsen without warning or reason.
Mr. Hartvigsen sent a grievance to the Perry City Council, appealing the termination of
his employment and the work benefits issue. He was referred to the Perry City Personnel Board
for a hearing, but the Personnel Board did not rule in his favor. In a closed session, the Perry
City Council heard Mr. Hartvigsen’s appeal from the Personnel Board and also ruled against him.
Mr. Hartvigsen does not clearly set forth in his complaint which federal rights he believes
the Defendants violated. But the court construes his charge that he faced “discrimination” as an
alleged equal protection violation; and the court construes his charge that Perry City failed to
follow its personnel policy as an alleged procedural due process violation. Both of these claims
fail.
1
These facts are taken from Mr. Hartvigsen’s complaint (Dkt. No. 3).
Equal Protection Claim
Because Mr. Hartvigsen does not make any allegations that he is a member of a particular
class that has been disproportionately burdened (due to his race or gender, for instance), he must
proceed on the “class of one” theory in order to state a claim for an equal protection violation.
This theory requires that Mr. Hartvigsen demonstrate that he was treated differently from other
persons who were “similarly situated in every material respect.” Kansas Penn Gaming, LLC v.
Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (citing Jicarilla Apache Nation v. Rio Arriba
County, 440 F.3d 1202, 1210 (10th Cir. 2006). Mr. Hartvigsen must then show that such
disparate treatment was without a rational basis. Id. In other words, Mr. Hartvigsen must show
that Perry City had no reason to treat him differently from other employees.
Mr. Hartvigsen claims that he was treated differently because part-time employees were
granted certain benefits that he was denied. But Mr. Hartvigsen was a temporary, not a part-time
employee. In fact, it is Perry City’s refusal to grant Mr. Hartvigsen part-time employee status
that forms the basis of his other complaint against the City (namely, that the City did not follow
its personnel policy when it denied him this status). Mr. Hartvigsen cannot state an equal
protection claim on the basis that the City treated him differently from its part-time employees.
Instead, Mr. Hartvigsen must show that other temporary employees who had worked more than
16 hours a week were granted part-time employee status and he was denied.2 Mr. Hartvigsen
must further demonstrate that the City did not have a rational basis for maintaining its animal
2
In a memorandum filed subsequent to the court’s hearing on this matter, Mr. Hartvigsen
does state, “I am [sic] discriminated against when other temporary employees were made
permanent according to the policy and I was not.” But Mr. Hartvigsen makes no specific
allegations about who those temporary employees were or why their positions were made
permanent. The City naturally has discretion to make some of its employment positions
temporary and others permanent. As noted above, Mr. Hartvigsen must show not only that he
was treated differently, but that such difference in treatment was arbitrary.
control officer position as a temporary employment position. Mr. Hartvigsen does not plead any
facts that, even construed in his favor, would allow the court to find that either of these
requirements have been met. As a result, Mr. Hartvigsen’s equal protection claim fails.
Due Process Claim
In order for Mr. Hartvigsen to claim a deprivation of procedural due process, he must
demonstrate that he possessed a protected property interest. See Bd. Of Regents v. Roth, 408
U.S. 564 (1972). Mr. Hartvigsen has not plead any facts that demonstrate that he had such a
protected interest (for example, that he was guaranteed employment for a certain period of time
when the City hired him as an animal control officer). At any rate, it appears that Mr. Hartvigsen
had two hearings after he was denied benefits and terminated, one with the Perry City Personnel
Policy Board and one with the Perry City Council. Even if Mr. Hartvigsen could allege a
protected property interest in the form of his employment, it does not appear that his job was
taken from him without adequate process.
Other Claims
Mr. Hartvigsen naturally disagrees with the City Council’s decision not to grant him
benefits, but this court does not have jurisdiction to hear an appeal from that body. Even if the
City Council did violate the Perry City Personnel Policy, this court has no authority to review the
City Council’s decision. Such a claim would be more appropriately brought before a state court.
Similarly, Mr. Hartvigsen believes that a breach of contract may have occurred. In the
latest memorandum filed by Mr. Hartvigsen, he states his belief that he had a verbal contract with
the Mayor and the City Recorder, a contract that was breached when he was terminated from
employment. Again, this court has no jurisdiction to evaluate Mr. Hartvigsen’s claim. This court
can only hear federal claims; and, as discussed above, Mr. Hartvigsen has failed to state such a
claim. Without a federal cause of action, his breach of contract claim must be brought before a
state, not a federal court.
CONCLUSION
Because the court can find no violations of Mr. Hartvigsen’s federal civil rights, the court
dismisses the case.
IT IS THEREFORE ORDERED that this case is dismissed without prejudice and the
Clerk of the Court is ordered to close the case.
DATED this 12th day of April, 2012.
BY THE COURT:
______________________________
TENA CAMPBELL
United States District Judge
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