Bird v. West Valley City et al

Filing 44

MEMORANDUM DECISION and ORDER granting 27 Motion for Summary Judgment. Signed by Magistrate Judge Paul M. Warner on 02/03/2015. (tls)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
KAREN BIRD,
Plaintiff,
v.
WEST VALLEY CITY, a political
subdivision of the State of Utah; and
KELLY DAVIS, in his official and
individual capacities,
Defendants.

MEMORANDUM DECISION
AND ORDER

Case No. 2:12-cv-903-PMW

Magistrate Judge Paul M. Warner

All parties in this case have consented to United States Magistrate Judge Paul M. Warner
conducting all proceedings, including entry of final judgment, with appeal to the United States
Court of Appeals for the Tenth Circuit. 1 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Before the
court is West Valley City (“WVC”) and Kelly Davis’s (“Davis”) (collectively, “Defendants”)
motion for summary judgment. 2 The court previously held oral argument on the motion. 3 April
L. Hollingsworth and Ashley F. Leonard appeared on behalf of Karen Bird (“Plaintiff”). Stanley
J. Preston, Bryan M. Scott, and Brandon T. Crowther appeared on behalf of Defendants. At the
conclusion of the hearing, the court took the motion under advisement. After carefully

1

See docket no. 11.

2

See docket no. 27.

3

See docket no. 42.

considering the parties’ written submissions, as well as the arguments presented by counsel at the
hearing, the court issues the instant Memorandum Decision and Order.
BACKGROUND
The following background facts are taken from Plaintiff’s complaint, deposition
testimony, affidavits, and other documents that cannot be disputed or controverted.
In approximately August 2001, Plaintiff was hired as an employee by Davis, the Director
of Operations for WVC Animal Services, to work as an Animal Shelter Tech in the WVC Animal
Shelter. In December 2001, Plaintiff was promoted to a full-time Animal Control Officer. In
October 2002, Plaintiff was promoted to Animal Shelter Manager by Davis, which was the
position she held when her employment was terminated in November 2011. As Animal Shelter
Manager, Plaintiff was supervised by Davis and reported directly to Davis.
Plaintiff admitted during her deposition that she was given a copy of WVC’s Policies and
Procedures Handbook (“Handbook”) in 2002 and that it was her responsibility to be familiar
with its contents. Plaintiff signed an acknowledgment form indicating that she had received a
copy of the Handbook and that the information in the Handbook was subject to change.
Part 1.2 of the 2010 version of the Handbook is entitled, “Policies and Procedures Do Not
Constitute a Contract.” 4 That provision of the Handbook explicitly states that “[t]he policies and
procedures stated in this [H]andbook and in other personnel statements or materials issued by
[WVC] do not create a binding contract, agreement, or other obligation of liability on the part of
[WVC].” 5 That portion of the Handbook was in place at the time of Plaintiff’s termination.
4

Id., Exhibit 14.

5

Id.
2

According to the affidavit of Paul Isaac (“Isaac”), the WVC Assistant City Manager and Human
Resource Director, the above-referenced provision of the Handbook has been in place since 1994
to the present. 6
In 2005, an investigation of the WVC Animal Shelter (“2005 Investigation”) was
conducted by Shirlayne George (“George”), who worked in the WVC Human Resources
Department. The 2005 Investigation was conducted as a result of several complaints from
employees in the WVC Animal Shelter and was undertaken to determine if anything was
occurring that was inappropriate or that might cause low morale among employees. During the
2005 Investigation, several employees complained about Plaintiff. The complaints concerned
favoritism by Plaintiff toward certain employees, fear of employees in bringing issues or
complaints to Plaintiff, degrading talk by Plaintiff toward employees, retaliation for bringing
complaints to Plaintiff, Plaintiff’s anger issues, and Plaintiff’s poor decision-making at work.
During the 2005 Investigation, employees were asked to rate Plaintiff as a supervisor on a scale
of 1 to 10. Plaintiff’s average score was 5.5.
During her deposition, Plaintiff admitted that, based upon a review of the 2005
Investigation report, she was having problems with the employees she supervised. Plaintiff
further admitted that (1) Davis never filled Plaintiff’s position with a man and that the position
was never filled at all after she was terminated; (2) she received pay raises during her
employment; (3) she was never denied a pay raise; and (4) at times, at least half of the employees
working at the WVC Animal Shelter were women. Plaintiff admitted that she and Davis had
their first disagreement in July 2009 and that, up until that point in time, she had a good working
6

See id., Exhibit 15.
3

relationship with Davis. When Plaintiff was directly questioned about whether she was fired
because she was a woman, she responded, “I feel that’s some of it, yes.” 7 However, Plaintiff
admitted that her gender was not the “predominant” reason for her termination. 8 Plaintiff
admitted that she never reported to WVC that she had been a victim of gender discrimination and
that nothing in the formal complaint she filed with WVC regarding Davis in November 2011,
which will be referenced below, mentions anything about gender discrimination.
Davis kept a journal wherein he documented his interactions with Plaintiff from
approximately June 2010 through November 2011. Among other things, that journal indicates
that multiple employees complained about Plaintiff, Davis had to ask Plaintiff to do things for
him multiple times, Davis backed Plaintiff in a hiring decision in order to support her, employees
would report problems to Davis because they did not want to raise those problems with Plaintiff,
and Davis had communication issues with Plaintiff.
On December 11, 2010, Davis conducted a performance evaluation of Plaintiff wherein
he noted that Plaintiff needed improvement in three different areas: adaptability, conflict
resolution, and team leadership. On December 21, 2010, Davis sent Plaintiff a memorandum of
understanding wherein he outlined, among other things, various issues he was experiencing with
Plaintiff, such as Plaintiff not supporting the cleaning protocols outlined by Davis, Plaintiff’s
deficiencies in dealing with the volunteer program at the WVC Animal Shelter, Davis’s
perception that Plaintiff had difficulty accepting direction and implementing that direction, and

7

Id., Exhibit 1.

8

Id.
4

Davis’s loss of trust in Plaintiff’s ability to administer the philosophy and vision of the WVC
Animal Shelter.
In October 2011, Plaintiff met with Layne Morris (“Morris”), the person to whom Davis
reported, and told Morris that she could no long work with Davis. Thereafter, Morris made the
independent decision to discipline Plaintiff based on his personal observations of the interactions
between Plaintiff and Davis.
Also in October 2011, WVC received a telephone call from a reporter claiming that he or
she had received an anonymous phone call from a person claiming that Davis was ordering a
mass-execution at the WVC Animal Shelter because it was overpopulated. During her
deposition, Plaintiff was questioned about whether she was the source of the above-referenced
information. She responded negatively to all questions in that regard and admitted that she never
said anything to the press about the WVC Animal Shelter.
On November 3, 2011, Plaintiff filed a formal written complaint against Davis during a
meeting with George. Plaintiff also provided an audio recording to George of a meeting she had
with Davis, which she believed demonstrated that Davis was harassing her. However, Plaintiff
admitted in her deposition that both George and Morris listened to the audio recording and
determined that it did not support Plaintiff’s allegations.
In 2011, as a result of Plaintiff’s complaint and various issues that had been occurring at
the WVC Animal Shelter, George undertook another investigation of the WVC Animal Shelter
(“2011 Investigation”). George typed her hand-written notes from the 2011 Investigation, which
contain comments about Plaintiff, Davis, and one other employee. Some of the comments made
regarding Plaintiff during the 2011 Investigation concerned Plaintiff’s decision-making at work;
5

tension between Plaintiff and another employee; Plaintiff’s abrasive, aggressive, belittling, and
demeaning behavior; and Plaintiff’s favoritism.
After reviewing the 2011 Investigation report, Morris determined that Plaintiff was
failing to perform her responsibilities at the WVC Animal Shelter and scheduled Plaintiff for a
pre-disciplinary meeting. Plaintiff and her husband attended that meeting, which was held in
November 2011. Plaintiff presented her side of the story during the meeting and was allowed the
opportunity to present evidence and have witnesses present. After conducting that meeting with
Plaintiff and her husband, Morris terminated Plaintiff’s employment in November 2011.
The Handbook provides certain grounds for discipline, including insubordination; failure,
neglect, or refusal to perform duties; and failure to be courteous or cooperative with the public or
fellow employees. On November 30, 2011, Morris sent Plaintiff a letter notifying her that she
was being terminated for cause. On December 12, 2011, Morris sent Plaintiff another letter that
stated that she was being terminated specifically due to insubordination and failure to be
courteous or cooperative with the public or fellow employees. According to an affidavit
submitted by Morris, he made the ultimate decision to terminate Plaintiff’s employment.
Morris’s affidavit further explains that he terminated Plaintiff for various reasons, but that the
most significant reasons were Plaintiff’s unwillingness to work with Davis, her insubordination
toward Davis, and her unwillingness to support Davis as her direct supervisor.
On December 5, 2011, Plaintiff appealed her termination to George. On December 11,
2011, George denied Plaintiff’s appeal based on the grounds that Plaintiff had been
insubordinate, neglected or refused to perform duties, and failed to be courteous and cooperative.

6

On December 22, 2011, Plaintiff appealed her termination to Isaac. On January 4, 2012,
Isaac also denied Plaintiff’s appeal. In his letter to Plaintiff, Isaac stated that Plaintiff continued
to blame her circumstances on Davis, but failed to recognize the fact that each of the charges
made against her had been substantiated by interviews with other employees. Isaac further stated
that it was clear to him that Plaintiff’s professional relationship with Davis had been strained to a
point that she could not and would not support Davis in any decision.
On January 17, 2012, Plaintiff appealed her termination to the WVC City Employee
Appeals Board (“Board”). During her deposition, Plaintiff admitted that the hearing before the
Board lasted 8-9 hours, she was represented by an attorney, she had the opportunity to present
exhibits to the Board, she had the opportunity to call witnesses to testify on her behalf, and her
attorney had the opportunity to cross-examine witnesses called by WVC. At the conclusion of
the hearing, the Board upheld her termination.
LEGAL STANDARDS
“The court shall grant summary judgment if the movant shows 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). “A fact is material if, under the governing law, it could have an effect on the
outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in
favor of the nonmoving party on the evidence presented.” Schneider v. City of Grand Junction
Police Dep’t, 717 F.3d 760, 767 (10th Cir. 2013) (quotations and citation omitted).
“‘[T]he burden on the moving party may be discharged by “showing”–that is, pointing
out to the district court–that there is an absence of evidence to support the nonmoving party’s
case.’” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)) (alteration in original).
7

“If the movant carries this initial burden, the non-movant may not rest upon its pleadings, but
must set forth specific facts showing a genuine issue for trial as to those dispositive matters for
which it carries the burden of proof.” Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)
(quotations and citation omitted).
When addressing a motion for summary judgment, the court “consider[s] the evidence
in the light most favorable to the non-moving party.” Conroy v. Vilsack, 707 F.3d 1163, 1170
(10th Cir. 2013) (quotations and citations omitted). However, “[a]t the summary judgment
stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a
genuine dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007) (quotations and
citation omitted). The Supreme Court has emphasized that “[w]hen the moving party has carried
its burden . . . , its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational
trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Id. (quotations
and citation omitted) (first and third alterations in original). “When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no reasonable jury
could believe it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.” Id.
ANALYSIS
Plaintiff initiated this case on September 24, 2012, alleging the following causes of action
against Defendants: (1) gender discrimination and hostile work environment under Title VII; (2)
violation of 42 U.S.C. § 1983 under the Equal Protection Clause based on the allegation that she
was terminated based upon her gender; (3) violation of 42 U.S.C. § 1983 based on the allegation
8

that her termination was in retaliation for her protected right of free speech under the First
Amendment; (4) violation of 42 U.S.C. § 1983 based on the allegation that she was deprived of
her rights to due process in connection with the termination of her employment; and (5) breach
of contract and breach of the covenant of good faith and fair dealing based on the allegation that
the Handbook and other unwritten policies created a binding contract between Plaintiff and
WVC, which was allegedly breached when WVC terminated Plaintiff’s employment. 9 The court
will address those claims in turn.
I. Title VII
Plaintiff has alleged causes of action under Title VII for both (A) gender discrimination
and (B) hostile work environment.
A. Gender Discrimination
Where a plaintiff relies on circumstantial evidence, as in this case, to prove a claim for
gender discrimination, the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 800-07 (1973) applies. See Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005).
Under that framework, “the plaintiff bears the initial burden to establish a prima facie case of sex
discrimination, which varies depending on the type of adverse action the employee alleges was
discriminatory.” EEOC v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007).
Once the plaintiff establishes a prima facie case of discrimination,
the burden shifts to the employer to articulate a legitimate,
nondiscriminatory reason for the adverse action. If the employer
does so, the burden shifts back to the plaintiff to show that there is

9

See docket no. 2.
9

a genuine issue of material fact as to whether the employer's
proffered reasons are pretextual.
Id. (citations omitted).
1. Prima Facie Case
Plaintiff has the burden of establishing a prima facie case “by a preponderance of the
evidence,” a burden which is “not onerous.” Plotke, 405 F.3d at 1099 (quotations and citations
omitted). In this case, the court concludes that, even if Plaintiff had established a prima facie
case, she has not, for the reasons discussed below, demonstrated that WVC’s proffered reasons
for her termination are pretextual.
2. Legitimate, Nondiscriminatory Reason
Plaintiff does not appear to dispute that WVC provided a legitimate, nondiscriminatory
reason for terminating her. Accordingly, the court turns the issue of pretext.
3. Pretext
With respect to pretext, “[i]f the defendant provides a nondiscriminatory reason for the
employment action, the plaintiff may defeat summary judgment by presenting sufficient
evidence such that a reasonable jury could conclude that the proffered nondiscriminatory reason
for the employment action is pretextual, that is, unworthy of belief.” Simms v. Okla. ex rel. Dep’t
of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir. 1999) (quotations
and citations omitted). “A plaintiff can show pretext by revealing such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy
of credence.” Green v. N.M., 420 F.3d 1189, 1192-93 (10th Cir. 2005) (quotations and citation
omitted). “In determining whether the proffered reason for a decision was pretextual, [the court]
10

examine[s] the facts as they appear to the person making the decision not the plaintiff's
subjective evaluation of the situation.” Luster v. Vilsack, 667 F.3d 1089, 1093 (10th Cir. 2011)
(quotations and citation omitted). “[M]ere conjecture that the employer’s explanation is pretext
is insufficient to defeat summary judgment.” Id. (quotations and citation omitted). “The relevant
inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it
honestly believed those reasons and acted in good faith upon those beliefs.” Id. (quotations and
citation omitted).
The court concludes that WVC’s reasons for terminating Plaintiff were not pretextual. As
noted by Defendants, WVC had the following grounds to terminate Plaintiff. First, based on the
2005 Investigation and the 2011 Investigation, Plaintiff was having problems with the employees
she supervised. Second, in October 2011, Plaintiff met with Morris and indicated that she could
no longer work with Davis and that the relationship between the two of them was broken, which
essentially put Morris in the position of having to choose between Davis and Plaintiff. Third,
prior to the 2011 Investigation, Morris independently made the decision to discipline Plaintiff
based on his own personal observations of the relationship between Plaintiff and Davis. Finally,
after reviewing the notes of the 2011 Investigation, and based on his own knowledge of events
occurring at the WVC Animal Shelter between Davis and Plaintiff, Morris determined that
Plaintiff was failing to perform her responsibilities as the WVC Animal Shelter Manager and
scheduled Plaintiff for a pre-disciplinary meeting, which ultimately led to Morris terminating
Plaintiff’s employment based on her insubordination and her failure to be courteous to fellow
employees.

11

4. Conclusion on Gender Discrimination
Even if the court assumes that Plaintiff has established a prima facie case, the court
concludes that she has not carried her burden of demonstrating that WVC’s stated reasons for her
termination were pretextual. As such, Defendants are entitled to summary judgment on this
claim.
B. Hostile Work Environment
To survive summary judgment on a hostile work environment claim, “a plaintiff must
show that a rational jury could find that the workplace is permeated with discriminatory
intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” Sandoval v. Boulder
Reg’l Commc’ns Ctr., 388 F.3d 1312, 1326-27 (10th Cir. 2004) (quotations and citation omitted).
“The severity and pervasiveness of the conduct must be judged from both an objective and a
subjective perspective. The objective severity of harassment should be judged from the
perspective of a reasonable person in the plaintiff’s position, considering all the circumstances.”
O’Shea v. Yellow Tech. Servs., 185 F.3d 1093, 1097-98 (10th Cir. 1999) (quotations, citations,
and footnote omitted). “Severity and pervasiveness are evaluated according to the totality of the
circumstances, considering such factors as the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Chavez v. N.M., 397
F.3d 826, 832 (10th Cir. 2005) (quotations and citations omitted). “But severity and
pervasiveness are not enough. The plaintiff must produce evidence that she was the object of
harassment because of her gender.” Id. at 833 (quotations and citation omitted); see also
12

Sandoval, 388 F.3d at 1327 (providing that a plaintiff “must also produce evidence from which a
rational jury could infer that she was targeted for harassment because of her gender”). “If the
nature of an employee’s environment, however unpleasant, is not due to her gender, she has not
been the victim of sex discrimination as a result of that environment.” Gross v. Burggraf Constr.
Co., 53 F.3d 1531, 1537 (10th Cir. 1995) (quotations and citation omitted).
The court concludes that Plaintiff has failed to demonstrate that demonstrate any
discriminatory intimidation, ridicule, or insult based on gender. Plaintiff has presented almost
exclusively alleged evidence of ordinary intimidation, ridicule, and insult. Indeed, most of the
evidence offered by Plaintiff does not reflect gender-based conduct or statements. Further, as
noted by Defendants, Plaintiff cannot convert alleged facts supporting an ordinary hostile work
environment claim into a Title VII hostile work environment claim merely because she and some
of the other complainants were female. As noted by Defendants, the Tenth Circuit has held that
“[f]acially neutral abusive conduct can support a finding of gender animus sufficient to sustain a
hostile work environment claim when that conduct is viewed in the context of other, overtly
gender-discriminatory conduct.” O’Shea, 185 F.3d at 1097. In this case, Plaintiff has failed to
show sufficient “overtly gender-discriminatory conduct” and has instead relied on circumstance
and the mere gender of complaining individuals to support her claim. Id.
Furthermore, as noted above, the Tenth Circuit has held that “[i]f the nature of an
employee’s environment, however unpleasant, is not due to her gender, she has not been the
victim of sex discrimination as a result of that environment.” Gross, 53 F.3d at 1537. “[A]
single statement which engenders offensive feelings in an employee would not affect the
conditions of employment to [a] sufficiently significant degree to violate Title VII.” Id. at 154213

43 (quotations and citation omitted) (final alteration in original). Further, “[t]o demonstrate that
she was subject to a hostile work environment, [the plaintiff] ha[s] to present admissible
evidence that she was subjected to a steady barrage of opprobrious [sexual] comments.” Id.
(quotations and citation omitted) (final alteration in original).
The evidence that Plaintiff relies upon consists of her own conclusory statements,
feelings, and opinions, which are not supported with any compelling examples of Davis’s
conduct. As Defendants have noted, of all of Plaintiff’s allegations, only four are alleged actions
that could be considered overtly gender-based during the time Plaintiff worked at the shelter
from August 2001 until November 2011. It is noteworthy that not a single one of these alleged
overtly gender-based actions involved Plaintiff. In sum, the court concludes that Plaintiff has
failed “[t]o demonstrate that she was subject to a hostile work environment” by “present[ing]
admissible evidence that she was subjected to a steady barrage of opprobrious [sexual]
comments.” Id. (quotations and citation omitted) (final alteration in original).
Defendants also point to the facts of Gross as they compare to the facts of this case. In
Gross, the court addressed the following factual allegations, which took place in about the space
of a year, and determined that they were not pervasive or severe enough for a Title VII hostile
work environment claim:
[1]) after Anderson was unable to elicit a response from Gross over
the CB radio, he made the following statement to another Burggraf
employee: “Mark, sometimes, don’t you just want to smash a
woman in the face?”; [2]) on one occasion, as she left her truck,
Anderson yelled at her: “What the hell are you doing? Get your
ass back in the truck and don’t you get out of it until I tell you.”;
[3]) Anderson referred to Gross as “dumb” and used profanity in
reference to her; [4]) only two women out of the forty who worked
under Anderson’s supervision completed the 1990 construction
season; [5]) Anderson hired Gross solely to meet federal
14

requirements against gender discrimination; [6]) Anderson disliked
women who were not between the ages of 19 and 25 and who
weighed more than 115 pounds; [7]) Anderson approached Gross
after work one day and offered to buy her a case of beer if she
would tell another Burggraf employee to “go fuck himself”; [8])
Anderson warned Gross that if she ruined the transmission on her
truck she would be fired; and [9]) Anderson threatened to retaliate
against Gross because he had heard that she was contemplating
filing an EEOC claim.
Id. at 1536. In this case, by contrast, Plaintiff has provided much less evidence of a hostile work
environment based on gender, despite her 10 year employment with WVC.
For the foregoing reasons, the court concludes that no “rational jury could find that
[Plaintiff’s] workplace [was] permeated with discriminatory intimidation, ridicule, and insult,
that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an
abusive working environment.” Sandoval, 388 F.3d at 1326-27 (quotations and citation omitted).
Accordingly, the court concludes that Defendants are entitled to summary judgment on Plaintiff’s
Title VII hostile work environment claim.
II. 42 U.S.C. § 1983 – Equal Protection
Plaintiff’s next cause of action is for violation of 42 U.S.C. § 1983 under the Equal
Protection Clause based on the allegation that she was terminated based upon her gender. The
Tenth Circuit has held that to succeed on a § 1983 equal protection claim based on gender, a
plaintiff “must ultimately prove the essential element of intentional discrimination. Absent a
discriminatory motive or intent, [the] challenged conduct would not violate clearly established
law.” Lewis v. City of Ft. Collins, 903 F.2d 752, 755 (10th Cir. 1990) (footnote omitted). “[T]he
requirements for establishing a § 1983 claim are the same as those for establishing the
underlying constitutional or statutory violations, and purposeful discrimination is an essential
15

element of an equal protection violation.” Id. at 755 n.1 (citations omitted). Because Plaintiff’s
claims for gender discrimination are against only WVC, she has an additional burden to show
that WVC intentionally discriminated against her based on her gender. A plaintiff bringing an
equal protection claim based on membership in a protected class, such as gender, is required to:
show intentional discrimination against h[er] because of h[er]
membership in a protected class, not merely that [s]he was treated
unfairly as an individual. “The decisionmaker [must have]
selected or reaffirmed a particular course of action at least in part
‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.”
Huebschen v. Dep’t of Health & Soc. Servs., 716 F.2d 1167, 1171 (7th Cir. 1983) (quoting
Personnel Adm’r v. Feeney, 442 U.S. 256, 279 (1979)) (final alteration in original).
Furthermore, under Plaintiff’s § 1983 claim against WVC, Plaintiff must allege and be able to
establish “that the unconstitutional actions of an employee were representative of an official
policy or custom of the municipal institution, or were carried out by an official with final policy
making authority with respect to the challenged action.” Camfield v. City of Okla. City, 248 F.3d
1214, 1229 (10th Cir. 2001) (quotations and citations omitted). Therefore, Plaintiff must prove
she was discriminated against based on her gender and that said conduct was representative of an
official policy or custom of WVC or was otherwise reaffirmed by WVC.
For the reasons set forth above concerning Plaintiff’s Title VII claims, Plaintiff has failed
to demonstrate that she was intentionally discriminated against based on her gender.
Furthermore, Plaintiff has failed to point to establish that there was an official policy or custom
of WVC regarding gender discrimination that was carried out by an official with final policy
making authority. For those reasons, the court concludes that Defendants are entitled to
summary judgment on this claim.
16

III. 42 U.S.C. § 1983 – First Amendment
Plaintiff’s next cause of action is for violation of 42 U.S.C. § 1983 based on the
allegation that her termination was in retaliation for her protected right of free speech under the
First Amendment. Plaintiff alleges that Defendants retaliated against her based on their belief
that Plaintiff had raised with the media her concerns about the effectiveness and cruelty of
WVC’s methods of euthanizing animals.
To recover under a First Amendment retaliation claim,
[Plaintiff] must establish that (1) she was engaged in
constitutionally protected activity, (2) the defendant’s actions
caused her to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that [protected] activity, and
(3) the defendant’s actions were substantially motivated as a
response to [her] protected conduct.
McBeth v. Himes, 598 F.3d 708, 717 (10th Cir. 2010) (quotations and citations omitted) (second
and third alterations in original). Defendants note that numerous jurisdictions have held that
where there is no speech by a plaintiff, there can be no First Amendment cause of action. See,
e.g., Wasson v. Sonoma Cnty. Junior Coll., 203 F.3d 659, 662-63 (9th Cir. 2000); Jones v.
Collins, 132 F.3d 1048, 1054 (5th Cir. 1998); Fogarty v. Boles, 121 F.3d 886, 890-91 (3d
Cir.1997); Barkoo v. Melby, 901 F.2d 613, 619 (7th Cir. 1990).
In Plaintiff’s deposition, she repeatedly stated that she did not communicate with the
media at all concerning the WVC Animal Shelter. Because Plaintiff did not engage in any
speech, the court concludes that Plaintiff’s First Amendment retaliation claim must fail,
consistent with the above-referenced authorities. Accordingly, Defendants are entitled to
summary judgment on this claim.

17

IV. 42 U.S.C. § 1983 – Due Process
Plaintiff’s next cause of action is for violation of 42 U.S.C. § 1983 based on the
allegation that she was deprived of her rights to due process in connection with the termination
of her employment. Plaintiff concedes that her only pending due process claim should be
dismissed. 10 Accordingly, the court concludes that Defendants are entitled to summary judgment
on that claim.
V. Breach of Contract and Breach of Covenant of Good Faith and Fair Dealing
Plaintiff’s final cause of actions are for breach of contract and breach of the covenant of
good faith and fair dealing based on the allegation that the Handbook and other unwritten
policies created a binding contract between Plaintiff and WVC, which was allegedly breached
when WVC terminated Plaintiff’s employment. “The elements of a prima facie case for breach
of contract are (1) a contract, (2) performance by the party seeking recovery, (3) breach of the
contract by the other party, and (4) damages.” Bair v. Axiom Design, L.L.C., 20 P.3d 388, 392
(Utah 2001). Clear and conspicuous language disclaiming contractual liability in an employee
handbook forecloses a finding of an implied-in-fact contract. See, e.g., Johnson v. Morton
Thiokol, Inc., 818 P.2d 997, 1003 (Utah 1991); see also Cabaness v. Thomas, 232 P.3d 486, 504
n.9 (Utah 2010) (“If anything, our decision today may cause employers wishing to avoid
contractual liability to draft their employee manuals with clear and conspicuous disclaimer
language.”); Kirberg v. West One Bank, 872 P.2d 39, 41 (Utah Ct. App. 1994) (“[W]here an
employee handbook contains a clear and conspicuous disclaimer of contractual liability, any

10

See docket no. 33.
18

other agreement terms must be construed in light of the disclaimer.” (quotations and citations
omitted)).
Defendants argue that these claims must fail because the Handbook never formed or
created an enforceable contract with WVC. The court agrees. As noted above, Plaintiff admitted
during her deposition that she was given a copy of the Handbook in 2002 and that it was her
responsibility to be familiar with its contents. Further, Plaintiff signed an acknowledgment form
indicating that she had received a copy of the Handbook and that the information in the
Handbook was subject to change. Also as noted above, Part 1.2 of the 2010 version of the
Handbook is entitled, “Policies and Procedures Do Not Constitute a Contract.” 11 That provision
of the Handbook explicitly states that “[t]he policies and procedures stated in this [H]andbook
and in other personnel statements or materials issued by [WVC] do not create a binding contract,
agreement, or other obligation of liability on the part of [WVC].”12 That provision of the
Handbook was in place at the time of Plaintiff’s termination and, according to Isaac’s affidavit, it
has been in place since 1994 to the present. 13
Based on those facts, the court concludes that the WVC’s express disclaimer of any
contractual obligation in the Handbook forecloses the possibility that the Handbook created a
valid contract between WVC and Plaintiff. See, e.g., Morton Thiokol, Inc., 818 P.2d at 1003; see
also Cabaness, 232 P.3d at 504 n.9; Kirberg, 872 P.2d at 41. Further, because there was no valid
contract based on the Handbook, WVC could not have breached the covenant of good faith and
11

Id., Exhibit 14

12

Id.

13

See id., Exhibit 15.
19

fair dealing because that covenant can be implied only in a valid, enforceable contract. See
Republic Group, Inc. v. Won-Door Corp., 883 P.2d 285, 289 (Utah Ct. App. 1994) (providing
that, Under Utah law, “to find a breach of the covenant of good faith and fair dealing, there must
be some type of preexisting contractual relationship” (quotations and citation omitted)); see also
Brehany v. Nordstrom, Inc., 812 P.2d 49, 55 (Utah 1991) (“Such a covenant cannot be construed,
however, to establish new, independent rights or duties not agreed upon by the parties.”).
For those reasons, the court concludes that Plaintiff’s claims for breach of contract and
breach of the covenant of good faith and fair dealing fail. Accordingly, Defendants are entitled
to summary judgment on those claims.
CONCLUSION AND ORDER
Based on the foregoing, the court concludes that Defendants are entitled to summary
judgment on all of Plaintiff’s causes of action. Accordingly, Defendants’ motion for summary
judgment 14 is GRANTED. All of Plaintiff’s claims in this case are DISMISSED WITH
PREJUDICE. The Clerk of the Court is directed to enter judgment in favor of Defendants and
close this case.
IT IS SO ORDERED.
DATED this 3rd day of February, 2015.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge
14

See docket no. 27.
20