Rippstein et al v. Sevier County et al

Filing 112

MEMORANDUM OPINION & ORDER RE: SUMMARY JUDGMENT(PEARSON LEFEVRE AND MORGAN)(Fed.R.Civ.P.56)-IT IS ORDERED that Dfts' Motion for Summary Judgment 57 as to plas Pearson, LeFevre and Morgan's constitutional liberty and property interest claim s, First Amendment retaliation claims, and state contract law claims is hereby GRANTED. IT IS FURTHER ORDERED that dft Barney's Motion for Summary Jgm 57 , to the extent it is based upon qualified immunity with respect to the Plas' constitutional claims, is hereby GRANTED. This order supersedes the prior Order of this court to that effect, entered 1/15/09 96 . LET JUDGMENT BE ENTERED ACCORDINGLY. Signed by Judge Bruce S. Jenkins on 6/29/09. (jmr)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF UTAH, CENTRAL DIVISION ********* K I R T RIPPSTEIN, JACK P E T E R S O N , ALLEN PEARSON, J E R R E D LeFEVRE and TROY M ORGAN, P l a i n t if f s , vs. SEVIER COUNTY, SEVIER C O U N T Y SHERIFF PHIL BARNEY a n d JOHN DOES I-X, D e f e n d a n ts . ) ) ) ) ) ) ) ) ) ) ) ) ) )

C i v il No. 2:06-CV-1063 BSJ M E M O R A N D U M OPINION & O R D E R RE: SUMMARY J U D G M E N T (PEARSON, L E F E V R E and MORGAN) ( F e d . R. Civ. P. 56)

FILED
CLERK, U.S. DISTRICT COURT June 29, 2009 (1:26pm) DISTRICT OF UTAH

********* T h is matter came before the court on Defendants' Motion for Summary Judgment, f ile d July 2, 2008 (dkt. no. 57). The court heard oral argument on the Motion on S e p te m b e r 29 and October 27, 2008. At the hearing, Plaintiffs were represented by Blake N a k a m u r a and Defendants were represented by Frank Mylar. At the conclusion of the h e a rin g , the court granted the Defendants' motion as to plaintiffs Rippstein and Peterson, a n d took the matter under advisement as to plaintiffs Pearson, LeFevre and Morgan. (See M in u te Entry, dated October 27, 2008 (dkt. no. 94; Order, filed November 19, 2008 (dkt. n o . 95).) Upon further consideration, this court granted the defendants' motion as to the re m a in in g plaintiffs on January 15, 2009, and requested counsel to prepare and submit a ro s te r of undisputed facts and proposed form of judgment. (See Order, filed January 15,

2 0 0 9 (dkt. no. 96).) Having reviewed and considered the parties' written submissions,1 the court now e n te rs the following Memorandum Opinion & Order reflecting its prior ruling on the d e f en d a n ts ' motion for summary judgment, and superseding its prior Order (dkt. no. 96) to that effect.. Background P lain tiff Allen Pearson ("Pearson") was hired by the Sevier County Sheriff's O f f ic e on July 10, 1995, and remains employed by the Sheriff's Office. Plaintiff Jerred L e F e v re ("LeFevre") was hired by the Sevier County Sheriff's Office in June 1995 and re m a in e d an employee of the Sheriff's Office until he resigned on October 30, 2006. Plaintiff Troy Morgan ("Morgan") was hired by the Sevier County Sheriff's Department in August 1994 and remains employed by the Sheriff's Office. As of 2006, all three p la in tif f s ("the Plaintiffs") had reached the rank of sergeant. Defendant Sheriff Phil Barney ("Barney") was first elected Sheriff of Sevier C o u n ty Sheriff's Department in 1998 and took office in 1999. In 2006, Barney was up f o r re-election. In December 2005, Delbert Lloyd ("Lloyd"), who at the time was Chief D e p u ty of the Sevier County Sheriff's Office, announced that he would be challenging

Counsel filed series of proposed forms of order and objections (see dkt. nos. 100, 101, 103, 104, 105, 106, 110, 111), which ranged farther afield from the grounds for this court's rulings than the court had anticipated. Those statements of undisputed facts--submitted by the defendants in a findings/conclusions format and ultimately approved by plaintiffs' counsel as well--remain part of the record, but are not the formal order of this court ruling on the defendants' summary judgment motion. Cf. Fed. R. Civ. P. 52(a)(3) (court not required to state findings or conclusions when ruling on a motion under Rule 56).

1

-2 -

B a rn e y in the Republican Primary to select the Republican candidate in the upcoming e le c tio n . Plaintiffs Pearson, LeFevre and Morgan supported Lloyd's campaign. On June 30, 2 0 0 6 , shortly after Barney defeated Lloyd in the primary election, the plaintiffs each re c eiv e d a letter from Barney informing them that they were being transferred to different p o s itio n s within the Sheriff's Office, but all three kept the rank of sergeant and continued a t their same pay level. On December 28, 2006, Plaintiffs brought this suit claiming that the reason they w ere transferred from their previous positions was their support of Lloyd's primary e lec tio n campaign. The Plaintiffs' complaint alleges: (1) deprivation of constitutionally p ro te c te d property interests, (2) violation of their constitutional right to free speech, (3) v io la tio n of their constitutional right to freedom of association, (4) deprivation of c o n stitu tio n a lly protected liberty interests, (5) breach of contract, and (6) breach of im p lied covenant of good faith and fair dealing. Defendants Barney and Sevier County (" th e Defendants") have moved for summary judgment on each of Plaintiffs' claims. Discussion " T h e purpose of summary judgment is to assess whether a trial is necessary. White v . York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). In other words, there `must be ev iden ce on which the jury could reasonably find for the plaintiff.' Panis v. Mission Hills B a n k , N.A., 60 F.3d 1486, 1490 (10th Cir. 1995)" Berry v. T-Mobile USA, Inc., 490 F.3d

-3-

1 2 1 1 , 1216 (10th Cir. 2007). Summary judgment is appropriate where there is no genuine is s u e of material fact and the moving party is entitled to judgment as a matter of law. F e d .R .C iv .P . 56(c). "The court must examine the record to determine whether any g e n u in e issue of material fact is in dispute, and must construe the facts and reasonable in f e re n c es drawn therefrom in the light most favorable to the nonmoving party." Holt v. G r a n d Lake Mental Health Ctr., Inc., 443 F.3d 762, 765 (10th Cir. 2006). A. Deprivation of Property Interests The Fourteenth Amendment protects individuals from deprivations of "life, liberty, o r property, without due process of law." U.S. Const. Amend. XIV. In examining a p la in tif f 's claim that he or she has suffered such a deprivation, a court first determines w h e th e r the individual had a protected interest under the Due Process Clause. See, e.g., W a t so n v. University of Utah Med. Ctr., 75 F.3d 569, 577 (10th Cir. 1996). If so, the c o u rt then examines whether in being deprived of that interest, the plaintiff received an a p p ro p ria te level of procedural due process. See id. T o assert a constitutional Due Process claim under 42 U.S.C. § 1983 for d e p riv a tio n of property, an employee must show that he was deprived of a property in te re s t that is protected by the Fourteenth Amendment. Board of Regents v. Roth, 408 U .S . 564, 569 (1972). The Supreme Court has explained that "[p]roperty interests, of c o u rs e , are not created by the Constitution. Rather they are created and their dimensions a re defined by existing rules or understandings that stem from an independent source such

-4-

a s state law." Roth, 408 U.S. at 577. "[P]ublic employees have a property interest in c o n tin u e d employment if contractual or statutory provisions guarantee continued e m p lo ym e n t absent `sufficient cause' for discharge." Lucas v. Murray City, 949 P.2d 7 4 6 , 752 (Utah Ct. App. 1997) (citing Roth, 408 U.S. at 576-78).2 In order to create such a property interest, a state statute or regulation must give the recipient "a legitimate claim o f entitlement to [the benefit]," Roth, 408 U.S. at 577, in this case, the claimed benefit of c o n tin u e d employment in a particular job assignment having a particular level of re s p o n s ib ility or authority. According to Sevier County's Sheriff's Office Policies and Procedures, "[t]he S h e r if f retains authority to assign personnel in any manner deemed advisable for the best in te re s t of the Department." (Defendants' Motion for Summary Judgment, filed July 2, 2 0 0 8 (dkt. no. 57), at Ex. B p.10.) Pointing to this language, the Defendants argue that s h e rif f 's office employees do not have a property interest in keeping a particular position w ith in the Department. Further, the Defendants claim that the Plaintiffs were simply re a ss ig n e d in the best interest of the Department. They argue that the fact that Plaintiffs m aintaine d their same rank and pay is evidence that the Plaintiffs' new positions were tr u ly nothing more than routine administrative reassignments. A s the court of appeals has explained, a state statute or regulation can create a

Lucas held that Utah Code Ann. § 10-3-1012 "confers upon civil service employees a property interest in continued employment," and that as a civil service employee, the plaintiff "had a vested right to continued employment absent a legal cause for termination." 949 P.2d at 753.

2

-5 -

p ro te c te d property interest in a particular employment status or rank if it "places s u b s ta n tiv e restrictions on the discretion to demote an employee, such as providing that d is c ip lin e may only be imposed for cause." Hennigh v. City of Shawnee, 155 F.3d 1249, 1 2 5 4 (10th Cir. 1998). In Greene v. Barrett, 174 F.3d 1136 (10th Cir. 1999), the court appeals concluded th a t the plaintiff had a protected property interest in continued employment at his rank of lie u te n a n t in the Laramie County Sheriff's Department because under Wyoming law, " `[ a ] deputy sheriff shall not be discharged, reduced in rank or suspended without pay e x c ep t for cause and after notice and opportunity for a hearing.'" Id. at 1140-41 (quoting W yo . Stat. Ann. § 18-3-611(b)). In Greene, the plaintiff had "shown that he had a le g itim a te expectation of continued employment at his rank of lieutenant," and was d e p riv e d of that interest when he was demoted to sergeant as part of an office-wide re o rg a n iz a tio n that was implemented a few days after the defendant became sheriff. Id. at 1 1 4 1 . The plaintiff had supported an opposing candidate, and alleged that the " re o rg a n iz a tio n " constituted a subterfuge for defendant's primary objective of retaliating a g a in s t him and forcing him out of the sheriff's department. Id. at 1139. In Anglemyer v. Hamilton County Hosp., 58 F.3d 533, 539 (10th Cir. 1995), the c o u rt considered whether the plaintiff had a property interest amenable to procedural due p r o c e s s protection in her continued employment in her particular positions as Risk M a n a g er, Quality Assurance Coordinator, and Infection Control Nurse at the defendant

-6-

h o s p ita l. Plaintiff had been terminated from her risk management and quality control p o s itio n s by the hospital board, but remained employed as a staff nurse at the hospital. While observing that a statutory provision or contract qualifying or limiting an e m p l o ye r 's discretion to reassign or transfer the employee may create a property interest in employee's particular position, Anglemyer affirmed summary judgment in favor of the h o s p ita l because the applicable State law would likely establish that an administrative d e c is io n to reassign or transfer a particular employee absent a statutory or contractual p ro v is io n to the contrary is left to the "unfettered discretion" of the employer. Id. at 539 (c itin g Roth, 408 U.S. at 567). W e believe the overwhelming weight of authority holds that no p ro te c te d property interest is implicated when an employer reassigns or tran sfe rs an employee absent a specific statutory provision or contract term to the contrary. All of the courts of appeals that have addressed this issue h a v e reached an identical conclusion. . . . Id . (citations omitted). "Even if the Kansas courts were to conclude a reduction of rank, statu s, or salary due to a job reassignment implicates a property interest," the court c o n tin u e d , "Ms. Anglemyer has not presented sufficient evidence that such a result o c c u rr e d here," because, inter alia, she did not show that her reassignment as a staff nurse w o u ld have resulted in a reduction of her salary. Id. at 539-40. M u c h the same result obtains in this case. While the Plaintiffs acknowledge that they did not have a property interest in not b e in g moved from one position to another, they argue they did have a property interest in

-7-

n o t being "demoted" and that their new positions were in fact constructive demotions. Alhough they retained their rank and rate of pay, the argue that their supervisory authority w a s removed and they were put in positions having less responsibility and a lower p e rc e iv e d status in the department. Given the Sheriff's unfettered "authority to assign personnel in any manner d e e m ed advisable for the best interest of the Department" under the department's own p o lic ie s, the plaintiffs have not shown that they had a legitimate expectation of continued em p loym en t in a particular position or job assignment within the department. The court g ra n ts summary judgment as to the Plaintiffs' Due Process property interest claim b e c a u s e the Plaintiffs have failed to show that they were deprived of a property interest th a t is protected by the Fourteenth Amendment.3 B . Liberty Interest Violation Plaintiffs allege that the Defendants deprived them of their Fourteenth Amendment lib e rty interests by demoting them and making false public comments about their actions w h ic h impugned their good names, reputation, honor and integrity.4
Plaintiffs may also have waived their procedural due process claim by not taking advantage of the internal review procedures available to them. The Sevier County Employee Handbook outlines the steps for em ployees to resolve job-related problems. The steps include the following: (1) the employee should first contact his immediate supervisor; (2) if dissatisfied with response of supervisor the employee should then contact his supervisor's supervisor; (3) if the employee remains dissatisfied, he may then present his concerns to a 3-member commission that will make a final determination on the issue. Furthermore, the handbook encourages the employee to contact Human Resources at any time to discuss County policies and the employee's options. (See Defendants' Reply Memorandum in Support of Motion for Summary Judgment, at Ex. J pp. 5-6.) The court of appeals has recognized that a plaintiff's reputation is a protected liberty interest, but it has also required plaintiffs to show that their reputation was damaged "in connection with [an] adverse action taken
4 3

(c o n tin u e d ...) -8 -

T h e elements for showing a violation of a liberty interest are laid out in Watson v. U n iv e rs ity of Utah Medical Center, 75 F.3d 569 (10th Cir. 1996): F irs t, to be actionable, the statements must impugn the good name, re p u tatio n , honor, or integrity of the employee. Second, the statements m u s t be false. Third, the statements must occur in the course of terminating th e employee or must foreclose other employment opportunities. And f o u rth , the statements must be published. These elements are not d isju n c tiv e , all must be satisfied to demonstrate deprivation of the liberty in ter e st. Id . at 579. But the court need not address all of these elements in every case because the S u p r e m e Court has held that for an employee to succeed on a claim of a violation of a lib e rty interest, the employee must have been terminated from employment. Paul v. D a v is, 424 U.S. 693, 710 (1976) (stating that "the defamation had to occur in the course o f the termination of employment. Certainly there is no suggestion in Roth to indicate th a t a hearing would be required each time the State in its capacity as employer might be c o n sid e re d responsible for a statement defaming an employee who continues to be an e m p lo ye e ."); see also Melton v. City of Oklahoma City, 928 F.2d 920, 926 (10th Cir. 1 9 9 1 ) (stating that a claim of deprivation of a liberty interest arises "[w]hen a public e m p lo ye r takes action to terminate an employee based upon a public statement of u n f o u n d e d charges of dishonesty or immorality that might seriously damage the em p loyee 's standing or associations in the community and foreclose the employee's

4

(...continued)

against them." Flanagan v. Munger, 890 F.2d 1557, 1571 (10th Cir. 1989). In other words, "defamation, standing alone, [is] not sufficient to establish a claim for deprivation of a liberty interest." Renaud v. Wyoming Dep't of Family Servs., 203 F.3d 723, 726-27 (10th Cir. 2000).

-9 -

f re e d o m to take advantage of future employment opportunities"); Stidham v. Peace O ffic e r Standards And Training, 265 F.3d 1144, 1153-54 (10th Cir. 2001). Because none of the Plaintiffs were terminated from their employment incident to th e alleged defamation, they cannot succeed on a claim of deprivation of a c o n s titu tio n a lly protected liberty interest. See Siegert v. Gilley, 500 U.S. 226, 233-34 (1 9 9 1 ) (stating that where plaintiff had not been terminated incident to the alleged d e f a m a tio n , damage flowing from an injury to plaintiff's reputation "may be recoverable u n d er state tort law but it is not recoverable in a [federal] action."). Therefore, the court g ra n ts Defendants' Motion for Summary Judgment as to Plaintiffs' liberty interest claims. C. Retaliation Claim P la in tif f s further argue that even if they did not have a constitutionally protected p ro p e rty interest in keeping their particular positions, they can still maintain a § 1983 r e ta lia tio n claim against Defendants. Plaintiffs claim that Defendants retaliated against th e m when they exercised constitutionally protected rights of freedom of speech and a ss o c ia tio n by openly supporting Lloyd's primary election campaign. While both sides a c k n o w le d g e that the Plaintiffs were not deprived their constitutional right to freedom of sp ee ch and freedom of association, the parties dispute whether the Plaintiffs were s u b s e q u e n tly retaliated against for engaging in such protected conduct. Although an employee need not be terminated to succeed on a § 1983 retaliation c la im , an employee must show that he suffered some adverse employment action. See

-10-

L y b r o o k v. Members of Farmington Mun. School Bd., 232 F.3d 1334, 1340 (10th Cir. 2 0 0 0 ); Childers v. Independent School Dist. No. 1 of Bryan County, 676 F.2d 1338, 1342 (1 0 th Cir. 1982) ("Retaliation that takes the form of altered employment conditions in s te a d of termination may nonetheless be an unconstitutional infringement of protected a c tiv ity." ). There are two separate tests for analyzing retaliation claims relating to freedom of a s s o c ia tio n and freedom of speech. 1. Freedom of Association " `T h e First Amendment protects public employees from discrimination based upon th e ir political beliefs, affiliation, or non-affiliation unless their work requires political a lle g ia n c e.'" Jantzen v. Hawkins, 188 F.3d 1247, 1251 (10th Cir. 1999) (quoting Mason v . Oklahoma Turnpike Auth., 115 F.3d 1442, 1451 (10th Cir. 1997)). To survive su m m a ry judgment, a plaintiff employee who alleges a retaliatory demotion needs to sh o w a "genuine dispute of fact that (1) political affiliation and/or beliefs were `sub stan tial' or `motivating' factors" in his demotion, and (2) his position did not require p o litic a l allegiance. Poindexter v. Board of County Com'rs of County of Sequoyah, 548 F .3 d 916, 919 (10th Cir. 2008) (quoting Barker v. City of Del City, 215 F.3d 1134, 1138 (1 0 th Cir. 2000)). The Plaintiffs in this case were not terminated from employment; they claim that th e y were demoted in retaliation for their political affiliations. In support of their

-11-

a rg u m e n t, Plaintiffs discuss a meeting in which Defendant Barney stated that Plaintiffs w e re "riding for the wrong brand." (See Plaintiffs' Memorandum in Opposition to D ef en d an ts ' Motion for Summary Judgment, filed August 8, 2008 (dkt. no. 76), at 14.) Further, the Plaintiffs argue that the facts that their transfers came the day after the p rim a ry elections is indication that the transfers were done in retaliation. Id. As to the s e c o n d prong of the test, there is no evidence to suggest that Plaintiffs' employment re q u ire d political allegiance. As explained above, Sheriff Barney reassigned the plaintiffs within the sheriff's d e p a r tm e n t , but without any reduction in rank or diminution of pay or benefits--"adverse e m p lo ym e n t actions" that would have been more characteristic of a "demotion" than a s im p l e administrative reassignment. Absent a demotion, dismissal, or similar adverse e m p lo ym e n t action, the plaintiffs have not established the kind of retaliatory conduct by th e ir employer that is required to sustain a First Amendment freedom of association c la im . The Defendant's' motion for summary judgment regarding Plaintiffs' freedom of a s s o c ia tio n claim will be granted. 2. Freedom of Speech In assessing an employee's First Amendment freedom of speech retaliation claim th e court engages in a a five-part inquiry: F irst, the court must determine whether the employee speaks pursuant to his o f f icia l duties. . . . Second, if an employee does not speak pursuant to his -12-

o f f ic ia l duties, but instead speaks as a citizen, the court must determine w h e th e r the subject of the speech is a matter of public concern. . . . If the s p e e ch is not a matter of public concern, then the speech is unprotected and th e inquiry ends. Third, if the employee speaks as a citizen on a matter of p u b lic concern, the court must determine whether the employee's interest in c o m m e n tin g on the issue outweighs the interest of the state as employer. . . . Fourth, assuming the employee's interest outweighs that of the employer, the employee must show that his speech was a substantial factor or a m o tiv a tin g factor in a detrimental employment decision. . . . Finally, if the e m p l o ye e establishes that his speech was such a factor, the employer may d e m o n s tra te that it would have taken the same action against the employee e v e n in the absence of the protected speech. B r a m m e r -H o e lte r v. Twin Peaks Charter Academy, 492 F.3d 1192, 1202-03 (10th Cir. 2 0 0 7 ) (internal quotations omitted); accord Dixon v. Kirkpatrick, 553 F.3d 1294, 1301-02 (10 th Cir. 2009). T h e Plaintiffs bear the burden of showing that their speech was "a `substantial f a cto r or a motivating factor in the detrimental employment decision,'" Dill v. City of E d m o n d , 155 F.3d 1193, 1202 (10th Cir.1998) (quoting Gardetto v. Mason, 100 F.3d 803, 8 1 1 (10th Cir. 1996))--requiring a showing that a detrimental employment decision was in fact made that adversely affected the Plaintiffs. See Moya v. Schollenbarger, 4 6 5 F.3d 444, 456 (10th Cir. 2006) (noting the implicit "`requirement that the public e m p lo ye r have taken some adverse employment action against the employee.'" (quoting B e lc h e r v. City of McAlester, Okla., 324 F.3d 1203, 1207 n.4 (10th Cir. 2003)); see also B a c a v. Sklar, 398 F.3d 1210, 1220 (10th Cir. 2005) ("An employee alleging retaliation m u st show that his employer took some adverse employment action against him."); cf. C h i ld e r s , 676 F.2d at 1342 (plaintiff's claim "he received a lower salary and the loss of -13-

o th e r benefits as a result of the change in his teaching duties" held sufficient to state a re ta lia tio n claim). In Lybrook v. Members of Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334 (10 th Cir. 2000), the court affirmed the dismissal of a plaintiff's retaliation claim where th e facts were insufficient to demonstrate an adverse employment action as is required to e s ta b l is h a First Amendment retaliation violation. As Lybrook explains, although " e m p lo ye rs ' acts short of dismissal may be actionable as First Amendment violations, we h a v e never ruled that all such acts, no matter how trivial, are sufficient to support a re ta lia tio n claim." Id. at 1340; see Rutan v. Republican Party of Illinois, 497 U.S. 62, 75 (1 9 9 0 ); Schuler v. City of Boulder, 189 F.3d 1304, 1309-10 (10th Cir. 1999). Even assuming, then, that the Plaintiffs were speaking as citizens as to a matter of p u b lic concern, and that their interest in speaking outweighs that of the Sheriff as an e m p lo ye r, their reassigment within the department at the same rank and pay does not re p re se n t the kind of adverse employment action required to prove a First Amendment fre ed o m -of -sp e ec h retaliation violation, and the Defendants are entitled to summary ju d g m e n t on that claim as well. D. State Law Contract Claims Plaintiffs' complaint alleges that they had an implied contract of employment with th e Defendants and that the Defendants breached that contract when they demoted the P la in tif f s without just cause, citing to Kinsford v. Salt Lake City School District, 247 F.3d

-14-

1 1 2 3 , 1133 (10th Cir. 2001), a Tenth Circuit case stating that "an implied-in-fact contract is a source of state law that can create an expectation of continued employment." Kinsford, relying in turn on a prior Utah Supreme Court decision, stated that "an impliedin -f a ct promise limiting the reasons for dismissal may arise from `the conduct of the p a rtie s, announced personnel policies, practices of that particular trade or industry, or o th e r circumstances which show the existence of such a promise.'" Id. (citing Berube v. F a s h io n Ctr. Ltd., 771 P.2d 1033. 1044 (Utah 1989)). A "dismissal" is not at issue in this case. Here, the Plaintiffs have not come f o rw a rd with significant probative evidence suggesting that an implied contract existed c o n c e rn in g tenure in the deputies' specific job assignments within the department. Plaintiffs point to nothing in the practices of the Sheriff's Department would have led P la in tif f s reasonably to believe that they had a contractual right not to be reassigned or tra n sf e rre d from their existing assignments to other positions in the department. In fact, a s noted above, the Sevier County Sheriff's Office Policies and Procedures emphasize the " a t will" nature of the deputies' employment and expressly vest the Sheriff with the " a u th o rity to assign personnel in any manner deemed advisable for the best interest of the D e p a rtm e n t." (Defendants' Motion for Summary Judgment, filed July 2, 2008 (dkt. no. 5 7 ), at Ex. B p. 10.)5

This court also considered the Plaintiffs' implied contract claim in the context of their alleged constitutional property interest violation and concluded that it lacked substance for purposes of that claim as well. Cf. Anglemeyer, 58 F.3d at 539-40 (stating that "an administrative decision to reassign or transfer a

5

(c o n tin u e d ...) -1 5 -

T h e re f o re , the court grants Defendants' Motion for Summary Judgment as to P la in tif f s claims of breach of contract and breach of implied covenant of good faith and f a ir dealing. E. Qualified Immunity D e f en d a n t Barney has raised an affirmative defense of qualified immunity. Once a d e f e n d a n t has raised a qualified immunity defense, the burden shifts to the plaintiff to s h o w that (1) the defendant's actions violated a constitutional right and (2) the right was c le a rly established at the time of the defendant's conduct. See Pearson v. Callahan,129 S .C t. 808, 815-16 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)); Romero v. B o a r d of County Commissioners, 60 F.3d 702, 704 (10th Cir. 1995). "If the plaintiff fails to carry either part of his two-part burden, the defendant is entitled to qualified im m u n ity." Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). Here, the Plaintiffs have not shown that they had a constitutional right to maintain a certain position or task assignment within the Sheriff's Department. As previously d is c u ss e d , the Sheriff had complete control over which employees held which positions w ith in the department. Departmental policies acknowledge that it is essential for the S h e rif f to retain this authority in order to successfully run the department. If employees h a d a vested constitutional interest in keeping certain job assignments within the

5

(...continued)

particular employee absent a statutory or contractual provision to the contrary is left to the `unfettered discretion' of the employer").

-16-

d e p a rtm e n t, the Sheriff's ability to manage the department would be drastically limited. As the Plaintiffs' constitutional claims fail on this first prong, this court need not a d d re ss the second one: If a plaintiff fails to demonstrate that a defendant's conduct violated th e law, the court need not determine whether the law was clearly e s ta b lis h e d . Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993). O u r threshold analysis thus focuses on determining "first whether the p la in tif f has alleged a deprivation of a constitutional right at all." County of S a c ra m e n to v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1 0 4 3 (1998). Eaton v. Meneley, 379 F.3d 949, 954 (10th Cir. 2004). F o r the foregoing reasons, then, the court grants Defendant Barney's Motion for S u m m a ry Judgment based on qualified immunity. Conclusion As explained above, the Defendants have carried their initial burden of d e m o n s tr a tin g the absence of a genuine issue of material fact concerning the Plaintiffs' v a rio u s constitutional and contractual theories of liability, and the Defendants have shown th e ir entitlement to judgment as a matter of law on those claims. Plaintiffs Pearson, L e F e v re and Morgan have failed to show the existence of a genuine issue of material fact as to any of their constitutional or contractual claims, and as a consequence, summary ju d g m e n t is granted as against those claims in favor of defendants Barney and Sevier C o u n ty. Therefore,

-17-