Kontgis v. Salt Lake City Corporation et al

Filing 56

MEMORANDUM DECISION AND ORDER granting 45 Defendants' Motion for Summary Judgment ; denying 46 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Dale A. Kimball on 3/25/2015. (jds)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

SUSI KONTGIS
Plaintiff,
vs.
SALT LAKE CITY CORPORATION, RALPH
BECKER, DAVID EVERITT, RALPH
CHAMNESS, DEBRA ALEXANDER, AND
JOHN DOES I-X,

MEMORANDUM DECISION
AND ORDER

Case No. 2:11CV1078 DAK

Defendants.

This matter is before the court on Defendants’ Motion for Summary Judgment1 and on
Plaintiff Susi Kontgis’s Motion for Partial Summary Judgment. A hearing on the motion was
held on January 14, 2015. At the hearing, Plaintiff was represented by Chad M. Steur.
Defendants were represented by Jonathan G. Pappasideris and Margaret D. Plane. Before the
hearing, the court carefully considered the memoranda and other materials submitted by the
parties. Since taking the motions under advisement, the court has further considered the law
and facts relating to the motions. Now being fully advised, the court renders the following
Memorandum Decision and Order.

1

The Defendants are Salt Lake City Corporation (the “City”), Ralph Becker, David
Everitt, Ralph Chamness, and Debra Alexander (the “Individual Defendants”) (collectively
referred to as “Defendants”).

I. FACTUAL BACKGROUND2
Ms. Kontgis was a long-time employee of the City. At the time of her layoff, she was
employed as a Senior Administrative Analyst for the City. At the time of the actions at issue,
Ralph Becker (“Mayor Becker”) was the Mayor of Salt Lake City. David Everitt (“Mr. Everitt”)
was the City’s Chief of Staff, Debra Alexander (“Ms. Alexander”) was the Director of the City’s
Human Resources Department, and Ralph Chamness (“Mr. Chamness”) was a Senior City
Attorney in the Salt Lake City Attorney’s Office.
In February 2009, Ms. Kontgis was assigned to the City’s Capital Asset Management
(“CAM”) Division within the Administrative Services Department. The CAM consisted of five
total employees, including Ms. Kontgis. In April 2009, faced with a difficult economic climate,
City Administration began to discuss, among other things, the possibility that layoffs might be
necessary at some point in the future. Toward that end, the City Administration started
examining, among other things, the City’s existing layoff ordinance.
The City’s existing Layoff Ordinance provided that “whenever it is necessary to reduce
the number of employees in any city department because of lack of work or lack of funds, the
city shall wherever possible attempt to minimize layoffs by readjustment of personnel through

2

The court finds that these fact are undisputed for purposes of Defendant’s Motion for
Summary Judgment. Plaintiff purports to dispute some of the facts, but the deposition
citations used to disputed various facts generally do not create a genuine issue of material fact.
The task of verifying Plaintiff’s purportedly disputed facts has been difficult, given the lack of
separately filed exhibits in Plaintiff’s 96-page Memorandum in Opposition to Defendant’s
Motion for Summary Judgment, but despite its efforts, the court has been unable to discern
any genuine issue of material fact.
2

reassignment of duty in other departments.” This process of reassigning employees was
known as “bumping rights.” Where reassignment was not possible, the Layoff Ordinance
stated that seniority was the sole consideration in designating employees for layoff.
Specifically, the ordinance stated that “[p]ermanent employees shall be the last to be laid off,
in inverse order of the length of service of employees in the same job classification performing
the same job functions and duties.”
The practice of using seniority as the sole consideration for layoff and reassignment,
however, directly conflicted with the City’s goal of minimizing the impact of layoffs. For
example, the practice of “protecting” employees with seniority through “bumping” (where the
most senior employee, who was typically the highest paid, bumped a less senior employee and
took their position) caused the City to actually have to eliminate more positions in order to
achieve the desired cost savings. In addition, relying solely on seniority for the purpose of
layoff designations without considering an employee’s entire job history and performance
resulted in undesirable inefficiencies.
City Administration proposed amending the layoff ordinance to remove the
requirement of seniority being the sole factor in layoff designations and eliminate the practice
of “bumping.” In addition, City Administration recommended changing the Employee Appeals
Board Ordinance. The Employee Appeals Board Ordinance provided a grievance procedure, in
accordance with state statute, for discharged employees. Because the relevant state statutes
(Sections 10-3-1105 and 10-3-1106 of the Utah Code) had recently been amended by the
legislature, the City needed to amend the Employee Appeals Board Ordinance accordingly to
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comply with the changed state law. As part of this ordinance amendment process, and even
though state statute did not require it, City Administration proposed providing laid-off
employees with a right to appeal to the Employee Appeals Board.
Although not obligated to do so, City Administration discussed these proposed changes
to the Layoff and Employee Appeals Board Ordinances with the three-member Executive
Committee of the Professional Employees Council (“PEC”). The PEC was an informal loosely
organized employee group that purported to represent the interests of all City employees
whose terms and conditions of employment were not covered by a memorandum of
understanding with an AFL-CIO affiliated trade union (i.e., non-represented employees). The
PEC was not a bargaining unit. While the City historically sought the input of the PEC on issues
pertaining to non-represented employees, the PEC’s role consisted of nothing more than
expressing its opinion.
In September 2009, following a series of meetings in which the proposed changes to
the Layoff and Employee Appeals Board Ordinances were explained, the Executive Committee
of the PEC tentatively approved the changes. On October 14, 2009, Mr. Everitt transmitted the
proposed amendments to the Layoff and Employee Appeals Board Ordinances to the City
Council. With respect to the Layoff Ordinance, Everitt noted that the proposed amendment
“eliminates the requirement that City seniority be the deciding factor in making layoff
decisions.”
On November 4, 2009, the Executive Director of the City Council informed City
Administration that the City Council would receive a briefing on the proposed ordinance
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changes on November 10, 2009 and would vote on whether to adopt them on November 17,
2009. Approximately one week later, on November 10, 2009, the City Council received a
memo from Sylvia Richards (a member of the City Council staff) summarizing the proposed
changes to the Layoff and Employee Appeals Board ordinances. That night, Richards,
Alexander, and Chamness briefed the City Council on the proposed changes.
On November 12, 2009, Pat Peterson (“Peterson”), the President of the PEC,
transmitted copies of the proposed new Layoff and Employee Appeals Board ordinances to PEC
representatives. Some PEC representatives provided negative feedback to Peterson regarding
the proposed amendments. As a result, Peterson scheduled a meeting with the PEC
representatives for November 16, 2009 to discuss their objections. Following the November
16, 2009 meeting, Peterson asked the City Council to postpone the vote on the Layoff and
Employee Appeals Board ordinances. The City Council declined to do so.
On November 17, 2009, the City Council passed the new Layoff and Employee Appeals
Board ordinances. Despite the opportunity to do so, neither Peterson nor any other member
of the PEC Executive Committee attended the City Council meeting to object to the proposed
changes. In December 2009, the City revised its internal procedures pertaining to layoffs and
the Employee Appeals Board to comport with the newly amended Layoff and Employee
Appeals Board ordinances.
In April 2010, City Administration determined that, due to the City’s financial situation,
layoffs of City employees would be necessary. Ultimately, City Department Directors
designated approximately twenty-five (25) individuals for layoff. Ms. Kontgis was not among
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them. In fact, when Mayor Becker transmitted his Recommended Budget to the City Council,
he specifically recommended no personnel changes within CAM. In other words, as of April
2010, City Administration had not designated Ms. Kontgis for layoff.
However, in late May 2010, the City Council–per its legislative prerogative–opted to
disregard the Mayor’s budget recommendations with respect to CAM and elected to eliminate
two specific positions–Capital Asset Management Director and Senior Administrative Analyst
(Ms. Kontgis’ position)–in order to realize approximately $240,000 in savings.
On June 1, the City Council formally voted to eliminate the two CAM positions, including
Ms. Kontgis’ position. Ms. Kontgis was verbally notified of this decision the following day. As a
result of the City Council’s decision, Mr. Everitt informed Ms. Kontgis that she had been
designated for layoff “due to the City Council’s decision to discontinue funding for your
position based upon budgetary issues.” Ms. Kontgis was also apprised of her right to file an
appeal with the Employee Appeals Board.
Five days later, on June 7, 2010, Ms. Kontgis wrote a letter to the City Council asking
them to reconsider their decision. As of June 7, 2010, Ms. Kontgis understood that, although
the City Council had voted to eliminate her position, their action would not be final and official
until June 16, 2010. Other than her June 7 letter, however, Ms. Kontgis did not communicate
with the City Council in any way. For example, she did not go to the City Council meeting and
speak in opposition to the proposed elimination of her position.
Following the formal City Council vote, Mr. Everitt presented Ms. Kontgis with a letter
placing her on layoff status effective immediately. The letter informed Ms. Kontgis that she
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would “be released from her employment with Salt Lake City Corporation effective July 16,
2010.” Additionally, the letter stated that Ms. Kontgis had the “right to appeal the City
Council’s layoff decision to the Employee Appeals Board.”3 If she chose to file such an appeal,
she was required to “submit written notice on the proper form to the City Recorder’s Office no
later than Wednesday, June 30, 2010.” Mr. Kontgis’ employment with the City ended on July
17, 2010. Mr. Kontgis filed an untimely appeal on July 28, 2010, which was dismissed. The
Utah Court of Appeals subsequently affirmed this decision.
Ms. Kontgis subsequently filed the instant action, alleging causes of action for (1)
Unconstitutional Ordinance (Employee Appeals Board Ordinance); (2) Unconstitutional
Ordinance (New Layoff Ordinance); (3) Violation of Due Process; (4) Violation of Equal
Protection; (5) Violation of First Amendment Right to Freedom of Speech; (6) Violation of
Utah’s Right to Work Law; (7) Breach of Implied Contract (Traditional Layoff Procedure) ; (8)
Breach of Implied Contract (Seniority); (9) breach of Implied Covenant of Good Faith and Fair
Dealing; (10) Intentional Infliction of Emotional Distress; and (11) Negligent Infliction of
Emotional Distress. On a previous Motion to Dismiss, brought by Defendants, the court
dismissed the Third through Twelfth Causes of Action against the Individual Defendants in their
official capacities. The court also dismissed the Causes of Action against the City for
Intentional and Negligent Infliction of Emotional Distress, and dismissed Plaintiff’s Cause of

3

With regard to appeal rights in the context of a layoff, the Employee Appeals Board
Ordinance contained the following provision: “If an appeal is based upon a layoff designation,
the review by the designated panel [of the Employee Appeals Board] shall be limited to
whether the city substantially followed its own layoff procedures when it designated the
employee for layoff.”
7

Action for Violation of Utah’s Right to Work Law and for an Equal Protection Violation.4
II. DISCUSSION
A. UNCONSTITUTIONAL ORDINANCES
The first and second causes of action asserted by Ms. Kontgis are both styled as
“unconstitutional ordinance” claims, but she fails to identify any provision of either the federal
or state constitution that the City has allegedly contravened.5 In her opposition memo,
Kontgis appears to argue that the EAB Ordinance and Layoff Ordinance impermissibly conflict
with state law. Defendants contend that neither the Layoff Ordinance nor the EAB Ordinance
conflicts with any state law.
Under Utah law, “where a city ordinance is in conflict with a state statute, the
ordinance is invalid at its inception.” Salt Lake City v. Newman, 2006 UT 69, ¶ 7, 148 P.3d 931
(internal quotation and citation omitted). To determine whether a conflict exists between an
ordinance and a statute, “the test is whether the ordinance permits or licenses that which the
statute forbids and prohibits, and vice versa.” Id. (internal quotation and citation omitted). Put
another way, “local governments may legislate by ordinance in areas previously dealt with by

4

See Memorandum Decision and Order dated September 20, 2012, Docket No. 18.

5

On September 26, 2014, almost three years after this case was originally filed,
Plaintiff filed an Amended Complaint, which attempted to assert an Equal Protection claim.
See Docket No. 48. The Amended Complaint, however, was stricken by the court because
Plaintiff had filed it without leave of court and almost a month after Defendant had filed a
Motion for Summary Judgment. Docket No. 49. On November 14, 2013–approximately 10
months earlier–the court had granted Plaintiff leave to file an amended complaint, but she
failed to do so. Docket No. 38. Accordingly, Plaintiff has not asserted an Equal Protection
Claim.
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state legislation, provided the ordinance in no way conflicts with existing state law (i.e.,
permitting that expressly prohibited by statute, or forbidding that expressly permitted by
statute).” Id. at ¶ 9 (internal quotation and citation omitted).
Additionally, “in the absence of express conflict” with a statute, an ordinance will be
upheld “unless there is some indication of incompatibility with the state statutory scheme.” Id.
at ¶ 10. “Implied conflict alone does not render an ordinance unconstitutional; impermissible
conflict instead arises when provisions are contradictory in the sense that they cannot coexist.”
Id. (internal quotation and citation omitted). In short, “an ordinance is not unconstitutional
merely because it implicitly conflicts with a state statute.” Id.
The court finds that there is no conflict between any state law and either the Layoff
Ordinance or the EAB Ordinance, and thus, Defendants are entitled to judgment as a matter of
law on Plaintiff’s First and Second Cause of Action.
B. VIOLATION OF DUE PROCESS PURSUANT TO 42 U.S.C. § 1983.
While it is unclear whether Kontgis is alleging a procedural or a substantive due process
claim (or both), Defendants argue that neither claim has merit. With respect to her
substantive due process cause of action, “[a] public employee with a property interest in
continued employment has a substantive due-process right not to be terminated for arbitrary
or capricious reasons.” Darr v. Telluride, 495 F.3d 1243, 1251 (10th Cir. 2007). Id. at 1257. For a
substantive due process claim to succeed, a court must conclude that the “governmental
action is arbitrary, irrational, or shocking to the contemporary conscience.” Id. Defendants also
contend that the Individual Defendants are entitled to qualified immunity in any event.
9

Regarding her procedural due process claim, she claims that this cause of action is based
on her belief that she was not given full disclosure that her job was being eliminated. Indeed,
she has moved for partial summary judgment on this procedural due process claim.6 Yet, the
undisputed facts show that Ms. Kontgis was notified of the City Council’s decision to defund
her position within one day of the Council initially voting on the question. Ms. Kontgis also
argues that she “was not given any kind of an opportunity to dispute the actions.” Again, the
undisputed facts debunk her assertion. Ms. Kontgis wrote a letter to the City Council asking
them to reconsider their decision. Despite having the opportunity to appear in person before
the City Council and contest their decision to defund her position, Ms. Kontgis failed to do so.
She also concedes that she was aware that she had a right to appeal to the Employee Appeals
Board and retained counsel to file such an appeal. However, Ms. Kontgis failed to file a timely
appeal to the Employee Appeals Board and, as such, her appeal was dismissed – a decision
upheld by the Utah Court of Appeals.
As argued by Defendants, Ms. Kontgis’ procedural due process claim is similar to that
asserted by the plaintiff in Johnson v. City of Murray, 909 F.Supp.2d 1265 (D. Utah 2012). In
Johnson, the Murray City Council voted to outsource the functions of the City’s Animal Control
Department, which resulted in the elimination of the plaintiff’s position as an animal control

6

To support her claim, she seems to contend that Defendants intentionally precluded
Plaintiff from taking advantage of her due process rights by claiming that her lay off was done
by the City Council and by amending the layoff procedure to eliminate her right to have an
written analysis completed by a Department Director as to all the factors that were considered
in the decision to lay her off.
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officer. Id. at 1282. The plaintiff responded by alleging that her procedural due process rights
were violated because the City’s decision to outsource its animal control department resulted
in the termination of her employment. The court rejected the argument and granted summary
judgment to the municipality on the plaintiff’s 42 U.S.C. § 1983 due process claim.
In its decision, the court emphasized that “[n]ormally, a procedural due process claim
arises when an employee is terminated for some form of misconduct without being given an
adequate opportunity to respond to the allegations” and went on to note that “[t]his is not a
case where the City terminated Plaintiff as a result of Plaintiff’s misconduct.” Id. at 1293.
Rather, similar to the City Council’s decision to defund Kontgis’ position, the plaintiff in Johnson
“was terminated as a result of the City outsourcing the animal control department.” Id. As
such, “[e]ven if the Court assumes that Plaintiff has a property interest such that she is entitled
to procedural due process regarding the City’s decision to outsource the animal control
department[,] . . . [i]t is undisputed that the City held a hearing . . . during which Plaintiff,
through her attorney, appeared and was able to present evidence disputing the City’s reasons
for outsourcing the animal control department.” Id. Because “[t]he City’s decision was not
made until after hearing evidence from all interested parties,” the court found that the City
provided the plaintiff with due process notice and the opportunity to respond. Id.
Like the plaintiff in Johnson, Ms. Kontgis received notice of the proposed defunding of
her position and had the opportunity to be heard and voice her opposition to the proposal,
which she admits she consciously chose not to do. Therefore, she has no tenable argument
that the City or the Individual Defendants deprived her of procedural due process.
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Accordingly, the court finds that Ms. Kontgis’ Motion for Partial Summary Judgment on
this claim is denied, and Defendants’ motion on Plaintiff’s Third Cause of Action is granted.
Plaintiff has failed to create a genuine issue of disputed fact to preclude summary judgment on
Defendants’ motion and Defendants are entitled to judgment as a matter of law. In any event,
even if she had created a genuine issue, the court finds that the Individual Defendants are
entitled to qualified immunity on this claim because Plaintiff has not demonstrated that any of
the Individual Defendants violated a clearly established right.
C. VIOLATION OF FIRST AMENDMENT RIGHT TO FREEDOM OF SPEECH
Ms. Kontgis has not created any genuine issue of material fact as to her claim that
Defendants violated her right to free speech. She admits that neither the City nor the
Individual Defendants ever prevented her from speaking at any type of meeting. Kontgis
admits that neither the City nor the Individual Defendants ever prevented her from speaking to
or communicating with the City Council. To the extent that Ms. Kontgis bases her claim on an
allegation that the City refused the PEC’s request to postpone the scheduled vote on the EAB
and Layoff Ordinances, that action, if assumed to be true, does not amount to a violation of
Ms. Kontgis’ free speech rights.
Accordingly, Plaintiff has failed to create a genuine issue of disputed fact on this claim,
and Defendants are entitled to judgment as a matter of law.7

7

Again, the court finds that the Individual Defendants are entitled to qualified
immunity on this claim because Plaintiff has not demonstrated that any of the Individual
Defendants violated a clearly established right.
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D.

CLAIMS FOR BREACH OF IMPLIED CONTRACT AND BREACH OF THE IMPLIED
COVENANT OF GOOD FAITH AND FAIR DEALING
Ms. Kontgis takes issue with the City’s modification of the “Traditional Layoff

Procedure” following the passage of the new Layoff Ordinance in 2009 and contends that this
modification constitutes a breach of an implied contract. In their motion, Defendants argue
that the “traditional layoff procedure” that provided for bumping rights was not a contract
with Ms. Kontgis and that she has no factual or legal authority to support this claim.
The court agrees with Defendants that Ms. Kontgis has failed to create a genuine issue
of disputed fact on her contract claims, and Defendants are entitled to summary judgment.
E. INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
While the court has no doubt that Plaintiff’s layoff caused her significant distress,
particularly after her long tenure with the City, she has not created a genuine issue of material
fact regarding either her claim for intentional or negligent infliction of emotional distress. The
undisputed facts establish that none of the Individual Defendants engaged in any intentional
conduct toward Ms. Kontgis for the purpose of inflicting emotional distress (or where they
should have known that such would result), and the no reasonable jury could find that they
acted in an “outrageous” and “intolerable” manner.
III. CONCLUSION
for the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s Motion for Partial
Summary Judgment [Docket No. 46] is DENIED, and Defendants’ Motion for Summary
Judgment [Docket No. 47] is GRANTED. Plaintiff’s Complaint is DISMISSED with prejudice. The

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Clerk of Court is directed to enter judgment in favor of Defendants and against Plaintiff and to
close this case.
DATED this 25th day of March, 2015.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

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