Kohl v. Burbank et al
ORDER AND MEMORANDUM DECISION granting 13 Motion to Dismiss Second Cause of Action for Failure to State a Claim. Signed by Judge Tena Campbell on 3/7/17 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
ORDER AND MEMORANDUM DECISION
MOTION TO DISMISS
SECOND CAUSE OF ACTION
CHRIS BURBANK, as an individual;
MELODY GRAY, as an individual; and
SALT LAKE CITY,
Case No. 2:16-CV-865-TC
Plaintiff Robert Kohl was a police officer with Defendant Salt Lake City Police
Department (Department). After he was constructively discharged in 2010 (he resigned in lieu of
being fired), Mr. Kohl filed a claim under 42 U.S.C. § 1983.1 He contends that the Department,
as well as individual Defendants Chris Burbank (Chief of Police at the time) and Lieutenant
Melody Gray, retaliated against him because he exercised his First Amendment right to freely
associate with the Fraternal Order of Police (FOP).
The Defendants, who assert that Mr. Kohl left the Department because he lied during an
internal affairs investigation, have a filed a partial motion to dismiss the § 1983 claim.
According to their motion, Mr. Kohl’s Amended Complaint fails to state a claim for relief under
Mr. Kohl also filed a claim under the Americans with Disabilities Act (ADA) (he has
dyslexia, dysgraphia, and other communication-based disabilities that made it difficult for him to
write clear incident reports). But the ADA claim is not before the court at this time.
Federal Rule of Civil Procedure 12(b)(6).
For the reasons set forth below, the court GRANTS the Defendants’ partial motion to
Robert Kohl began working as a police officer for the Salt Lake City Police Department
in 2001. During that time, he was a member of the Salt Lake Police Association (SLPA), the
employee union that has a collective bargaining agreement with Salt Lake City. He was also a
member of the Fraternal Order of Police (FOP) union, which does not have a collective
bargaining agreement with the City. Mr. Kohl alleges that the Department was aware of Mr.
Kohl’s affiliation with the FOP, but he does not expressly allege that either Lieutenant Gray or
Chief Burbank were aware of his membership.
On December 12, 2010, he resigned from his job. According to Mr. Kohl, his
constructive discharge was the result of the Department’s retaliation against him for his
association with the FOP. Mr. Kohl does not specify actions he took or statements he made as a
member of the FOP. The court gathers from the allegations in his Amended Complaint that his
protected activity was joining the union.
Department Policies Regarding FOP and its Members
Mr. Kohl alleges that the Department and Chief Burbank “implemented and executed
policies, customs, and practices that unconstitutionally discriminated against members of the
For purposes of this order on the Defendants’ motion to dismiss under Rule 12(b)(6), the
court must treat all of the well-pleaded factual allegations in Mr. Kohl’s Amended Complaint
(Docket No. 11) as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
FOP.” (Am. Compl. ¶ 74 (Docket No. 11).) Lieutenant Gray “helped [Chief Burbank]
implement [those] policies, customs, and practices . . . .” (Id. ¶ 81.)
The unfair treatment of the FOP as an entity included denial of “equal access to avenues
of communication, including equal access to recruits” and “the ability to post information on the
Department’s bulletin board.” (Id. ¶ 11.) According to Mr. Kohl, the Department mistreated
FOP members by enacting “a policy where FOP members would have lower priority in achieving
promotions . . . [and] were targeted for termination,” and requiring that a Department attorney be
present for all Internal Affairs (IA) investigations of FOP members but not IA investigations of
non-FOP members. (Id. ¶¶ 78–79.) Finally, he asserts that the Department, as well as Chief
Burbank and Lieutenant Gray, “issued significantly harsher discipline against FOP members than
non-FOP members for similar malfeasances.” (Id. ¶ 14.) Mr. Kohl does not identify employees
who received disparate levels of discipline and does not describe the “malfeasances” that
occurred. He does not identify any discipline that Chief Burbank personally imposed on Mr.
Mr. Kohl’s Learning Disability and “Papering”
Mr. Kohl has a learning disability “involving dyslexia, dysgraphia, and other
communication-based disabilities that ma[k]e it difficult for [him] to write proficiently.” (Id. ¶
15.) The Department was aware of his disability. “Despite knowledge of his documented
disability, the Department, and specifically, [Lieutenant] Gray, . . . disciplined him for his report
writing.” (Id. ¶ 16.) According to Mr. Kohl, “[o]thers in the Department did not receive the
same level of scrutiny and/or discipline as [he did] in regards to report writing.” (Id. ¶ 17.)
Mr. Kohl alleges that Lieutenant Gray “began the process of ‘papering’” him. (Id. ¶ 82.)
“‘Papering’ is where a supervising officer begins documenting a series of complaints regarding a
supervised officer[’s] conduct to use as support for the supervised officer’s eventual
termination.” (Id. ¶ 83.) According to Mr. Kohl, the complaints against Mr. Kohl “had no basis
in fact.” (Id. ¶ 84.) He does not describe the complaints, who made the complaints, the alleged
inadequacies, or the falsity of the accusations, and he does not allege that Lieutenant Gray knew
or had reason to know that the complaints were unfounded. Moreover, it is not clear that the
complaints were based on his report-writing inadequacies.
Mr. Kohl complained to Chief Burbank that Lieutenant Gray was harassing him with the
ongoing “papering.” Chief Burbank told Mr. Kohl that he was aware of that harassment and that
he would investigate Lieutenant Gray’s actions. But Chief Burbank never conducted that
After Mr. Kohl was increasingly disciplined for writing incident reports that his
supervisor Lieutenant Gray deemed inadequate, he “attempted to provide his supervisors with
documentation of his learning disability.” (Id. ¶ 18.) He was warned that “if he formally
submitted documentation of his learning disability his employment with the Department would
be immediately terminated.” (Id. ¶ 19.) Then, in 2010 when he did submit the documentation,
he “was accused of making excuses for his report writing.” (Id. ¶ 20.) He does not identify either
the person who made the threat or the person who made the accusation.
The Internal Affairs Investigation and Kohl’s Resignation
In 2010, the Department investigated Mr. Kohl for allegedly using excessive force during
an arrest.3 During the IA review of the excessive force allegation, the Department interviewed
him and ultimately accused him of lying because “his verbal rendition of events was inconsistent
with his written version.” (Id. ¶ 23.) Mr. Kohl told the Department that “any inconsistencies
were due to his learning disability and the fact that he was not reasonably accommodated with
additional time to provide a supplemental report” about the incident leading to the excessive
force allegation. (Id. ¶ 24.)
After he was accused of lying in his report, he spoke to the SLPA union representative
Andy Leonard, who said “he had been in contact with [SLPA President] Gallegos, Findlay,
and [Chief] Burbank, and that the only way for Kohl to keep his job was to claim that he
misrepresented facts concerning the . . . arrest.” (Id. ¶ 26.) SLPA President Gallegos also
advised him that “he had to lie in order to keep his job.” (Id. ¶ 27.) Mr. Kohl alleges “on
information and belief” that the Department condoned the advice he received from the two union
representatives.5 (See id. ¶ 30.) Based on that advice, “and under pressure of losing his job
because his disability resulted in a poorly written report, Kohl claimed that his report was
incorrect and untruthful” during an IA hearing. (Id. ¶ 29.)
After Mr. Kohl said he lied in his written report, Lieutenant Gray told Sergeant Ammott6
that the Department was going to fire Mr. Kohl. Sergeant Ammott passed that information along
The details about the arrest are not included in the complaint.
The complaint does not state the full name or title of “Findlay.”
He does not allege that the union representatives were acting as agents of the Department
or that they conspired with the Department to pressure Mr. Kohl to lie so the Department would
have a reason to fire Mr. Kohl.
The complaint does not state Sergeant Ammott’s full name.
to Mr. Kohl, who then contacted SLPA President Gallegos who “assured Kohl that he would be
transferred to the East Side and that Gallegos was in direct contact with [Chief] Burbank and
other deputy chiefs regarding Kohl’s situation.” (Id. ¶ 33.)
But on December 12, 2010, the Department, citing Mr. Kohl’s lie, gave Mr. Kohl the
option of resigning or being discharged. Mr. Kohl chose to resign.
In the meantime, the Department sent Mr. Kohl’s IA file to the Peace Officer Standards
and Training (POST) academy.7 In August 2011, eight months after Mr. Kohl resigned, POST
“exonerated him.” (Id. ¶ 40.) Despite learning about the POST decision, the Department
“declined to reinstate Kohl despite knowledge that Kohl did not lie under Garrity as
determined by the POST investigation that Kohl had a documented disability that was not
accommodated.” (Id. ¶ 41.)
Issuance of the “BOLO”
At some point after Mr. Kohl resigned, the Department issued a “BOLO” (“Be on the
look-out”) bulletin to law enforcement officers suggesting that Mr. Kohl was dangerous and
perhaps suicidal. According to Mr. Kohl, the negligently-issued BOLO was unfounded and
caused other law enforcement agencies to view him with suspicion. He alleges that the
Law enforcement officers in Utah must satisfy POST certification requirements before
serving in a law enforcement agency.
See Garrity v. State of New Jersey, 385 U.S. 493 (1967). State and local investigators
use the Garrity warning to advise employees who may be the subject of an internal investigation.
Under that warning, the investigator advises the employee of potential criminal and
administrative liability for statements he makes and advises him of his right to remain silent on
issues that may implicate him in a crime.
Department issued the BOLO “to dissuade all law enforcement agencies in Utah from hiring
Kohl.” (Id. ¶ 87.)
The Defendants ask the court to dismiss the Amended Complaint under Rule 12(b)(6)
because (1) Mr. Kohl’s membership in the FOP is not a matter of public concern (an element of a
First Amendment retaliation claim); (2) he has not satisfactorily alleged that his membership in
the FOP was the “substantial motivating factor” underlying his discharge (another element of the
claim); (3) his vague allegations fail to tie the actions of Lieutenant Gray and Chief Burbank to
his FOP membership and so fail to establish a discriminatory motive; and (4) his claim against
the Department consists of nothing more than conclusory allegations about a policy targeting the
FOP and its members, and, consequently, he has not stated a claim against the Department for
municipal liability under § 1983.
Standard of Review
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss all or a portion of a
complaint if it fails to state a claim upon which relief can be granted. The court, during its
review, must view the complaint in a light most favorable to the plaintiff. Montgomery v. City
of Ardmore, 365 F.3d 926, 935 (10th Cir. 2004).
To survive a motion to dismiss under Rule 12(b)(6), the complaint must contain wellpleaded factual allegations that, if true, state a claim that is plausible on its face. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 547 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Under
Twombly, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. at 663 (quoting Twombly,
550 U.S. at 555). In addition, “where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
Accordingly, the court must “disregard conclusory statements and look only to whether the
remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air
Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
First Amendment Retaliation Claim
To prevail on a claim of retaliation for exercise of a First Amendment right—in this case,
freedom of association with a labor union9—an employee must establish three elements: (1) the
protected activity involved a matter of public concern; (2) the employee’s interest in taking the
protected action outweighed the employer’s interest in regulating the action; and (3) the protected
activity was a “substantial motivating factor” in the employer’s decision to take the adverse
action against the employee. Cillo v. City of Greenwood Village, 739 F.3d 451, 461 (10th Cir.
2013) (citing Maestas v. Segura, 416 F.3d 1182, 1187 (10th Cir. 2005)). To satisfy the
“substantial motivating factor” prong of the test, the employee “must show the protected speech
played a substantial part in the employer’s decision to adversely alter the employee’s conditions
“The First Amendment protects the right of a public employee to join and participate in a
labor union.” Morfin v. Albuquerque Pub. Sch., 906 F.2d 1434, 1438 (10th Cir. 1990) (citing
Smith v. Ark. State Highway Emp., 441 U.S. 463, 465 (1979)).
of employment.” Maestas, 416 F.3d at 1188 (emphasis in original). But if the employer
establishes that it would have taken the same action against the employee in the absence of the
protected activity, the employee cannot recover. Id. at 1187.
Undermining Mr. Kohl’s allegations is the Department’s proffered reason for his
discharge: that he lied during a formal investigation, something he expressly admits in his
complaint. Given that admission, the court finds that Mr. Kohl has not sufficiently alleged that
his membership in the FOP was the substantial motivating factor in the Department’s decision to
terminate his employment or that any allegedly discriminatory policy was the cause of his
termination.10 Accordingly, he has not stated a claim for deprivation of a constitutional right.
In addition, Mr. Kohl has not pleaded facts that adequately allege personal involvement
by Lieutenant Gray or Chief Burbank in any alleged deprivation of his First Amendment right to
freedom of association. Accordingly, he fails to state a claim against Lieutenant Gray and Chief
Burbank for individual liability under § 1983.
To establish municipal liability under § 1983, a plaintiff must show “‘1) the existence of a
municipal policy or custom and 2) a direct causal link between the policy or custom and the
injury alleged.’” Mocek v. City of Albuquerque, 813 F.3d 912, 933 (10th Cir. 2015) (quoting
The Defendants also assert that Mr. Kohl’s membership in the FOP was not a matter of
public concern because FOP does not have a collective bargaining agreement with the City.
Tenth Circuit law is not clear on this issue. See Cillo v. City of Greenwood Village, 739 F.3d
451, 461 n.17 (10th Cir. 2013) (“It is not clear whether the first factor [requiring that the
protected activity involve a matter of public concern] applies to retaliation claims involving
union association, particularly where there is not a collective bargaining agreement in place.”).
Because Mr. Kohl’s complaint is deficient in other respects, the court will not address the “public
Graves v. Thomas, 450 F.3d 1215, 1218 (10th Cir. 2006)). Here, Mr. Kohl alleges that the
Department (through Chief Burbank11) had a policy of mistreating the FOP and its members,
According to Mr. Kohl, Chief Burbank “implemented and executed policies, customs,
and practices that unconstitutionally discriminated against members of the FOP” by “delaying the
FOP members’ enactment of automatic payroll deductions for union dues,” denying “the FOP
equal access to police recruits,” denying “the FOP access to a public bulletin board,” enacting “a
policy where certain FOP members where [sic] targeted for termination,” all with the goal “to
dissuade individuals from associating with the FOP.” (Am. Compl. ¶¶ 74–80.) These show
resistance to the FOP and its members, but they do not directly address Mr. Kohl’s situation.
Assuming he has sufficiently stated the existence of a policy, the court finds that he has
not alleged a direct causal link between that policy and his constructive discharge. Mr. Kohl
admits in his complaint that he lied during the IA investigation. His motivation for lying (the
advice from union representatives, allegedly condoned by the Department, and fear of losing his
job) does not change that fact. His decision to lie was an intervening cause that undermines a
The court assumes, without deciding, that Chief Burbank, as Chief of the SLCPD, was
an authorized decisionmaker for the City whose decisions concerning Mr. Kohl could potentially
bind the City under § 1983. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986)
(“If the decision to adopt [a] particular course of action is properly made by [the municipality’s]
authorized decisionmaker, it surely represents an act of official government ‘policy’ as that
term is commonly understood” and “may give rise to municipal liability under § 1983”).
Defendants point out that the City has an ordinance setting forth the following official
non-discrimination policy: “[N]o employee shall be discriminated against because of affiliation
or membership with any labor union, nor shall any employee be compelled, coerced or
intimidated to join or refrain from joining any such organization.” Salt Lake City, Utah, City
Code § 2.52.080 (2016). But the Defendants do not clarify whether that policy was in effect in
2010, so the court will not address the impact, if any, it would have in Mr. Kohl’s case.
conclusion that his FOP membership was a substantial motivating factor in the Department’s
decision to constructively discharge him. See Maestas, 416 F.3d at 1189 (“[E]vidence of
intervening events tend[s] to undermine any inference of retaliatory motive and weaken[s] the
causal link.”). For that reason, Mr. Kohl has not alleged municipal liability under § 1983.
To be liable under § 1983, an individual defendant must have personally participated in
the violation. Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). To survive a motion to
dismiss, the plaintiff’s complaint must “make clear exactly who is alleged to have done what to
whom, to provide each individual with fair notice as to the basis of the claims against him or her,
as distinguished from collective allegations against the state.” Robbins v. Oklahoma, 519 F.3d
1242, 1250 (10th Cir. 2008) (emphasis in original). Mr. Kohl’s frequent use of the words
“Department” and “Defendants” is not sufficient to allege specific actions of individual
Defendants Gray and Burbank. See Pahls v. Thomas, 718 F.3d 1210, 1225–26 (10th Cir. 2013)
(“When various officials have taken different actions with respect to a plaintiff, the plaintiff’s
facile, passive-voice showing that his rights ‘were violated’ will not suffice. Likewise
insufficient is a plaintiff’s more active-voice yet undifferentiated contention that ‘defendants’
infringed his rights.”).
The Amended Complaint does not contain sufficient allegations linking Lieutenant
Gray’s actions to Mr. Kohl’s constructive discharge. His statement that she “helped” to
implement discriminatory policies established by Chief Burbank is too conclusory. And the few
specific allegations left in his complaint do not link her actions to Mr. Kohl’s FOP membership
or his discharge.
To start, he does not allege that Lieutenant Gray was aware of his FOP membership.13
But even if he did make that allegation, a reader of the complaint cannot reasonably conclude
that Lieutenant Gray personally participated in his constructive discharge, much less that she did
so because of his FOP membership.
He claims that she unfairly harassed him about his written reports even though she knew
of his disability. He alleges that she “papered” him to memorialize unfounded complaints. He
does not provide any specifics about the complaints, why he believes they were unfounded, or
that she knew they were unfounded. And he does not allege that he was terminated based on
inadequate written reports or a progressive discipline policy triggered by a series of unfounded
complaints in his file. Indeed, as reason for his termination, the Department cites his decision to
lie during an IA investigation.
The allegation that Lieutenant Gray referred him for investigation does not change the
court’s conclusion. There are no allegations that instigation of the investigation (which began
with a charge of excessive force) was unwarranted. And the court cannot ignore the fact that he
chose to lie during the investigation.
He does not allege that Lieutenant Gray had authority to fire him, or that she was
involved in the decision to fire him. The only possible link is her statement to Sergeant Stafford
that Kohl was going to be fired for lying. But that neutral statement that does not establish that
she participated in his discharge, much less that she had a discriminatory motive.
His allegation that the Department was aware of his membership “at all relevant times”
(Am. Compl. ¶ 9), does not extend to Lieutenant Gray.
In short, the specific allegations, in combination, do not plausibly link her to the alleged
Mr. Kohl may state a claim against Chief Burbank, who was a supervisor, in a couple of
ways. Of course he can allege that Chief Burbank personally and directly committed the
violation against Mr. Kohl. But he may also allege that Chief Burbank, as a supervisor,
“personally directed the violation or had actual knowledge of the violation and acquiesced in its
continuance.” Jenkins, 81 F.3d at 994–95 (internal citations and quotation marks omitted).
The court initially notes that Mr. Kohl’s allegation that the Department was aware of his
FOP membership “at all relevant times” (Am. Compl. ¶ 9) does not extend to Chief Burbank as
an individual. But even if the court imputes the Department’s knowledge to Chief Burbank, the
remaining allegations are too sparse to find him individually liable.
An allegation that Chief Burbank, who was a supervisor, “was in charge of other state
actors who actually committed the violation” is not sufficient to state a claim against the
supervisor as an individual. Jenkins, 81 F.3d at 994. “Instead, just as with any individual
defendant, the plaintiff must establish a deliberate, intentional act by the supervisor to violate
constitutional rights.” Id. at 994–95 (internal citation and quotation marks omitted).
Mr. Kohl generally alleges that Chief Burbank “was aware of the discrimination, harassment, and
unfair treatment directed at Kohl and refused to investigate or remedy the misconduct.” (Am.
Compl. ¶ 65.) The court reads that allegation to refer to Lieutenant Gray’s continued “papering”
and discipline for report writing. Chief Burbank admitted to Mr. Kohl that he was aware of
Lieutenant Gray’s “consistent harassment” of Mr. Kohl regarding Mr. Kohl’s written reports, and
despite saying that he “would personally conduct an investigation of Gray,” he did not conduct
that investigation. (See id. ¶¶ 34–36.) Failing to conduct an investigation into Lieutenant Gray’s
“harassment” of Mr. Kohl was not acquiescence in a constitutional violation. As noted above,
the harassment allegations against Lieutenant Gray do not allege a constitutional violation.
In addition, Mr. Kohl asserts that Chief Burbank “constructively terminated” him. (Id.
¶ 36.) Not only is that statement too conclusory under the pleading rules, but the facts alleged in
the complaint actually support the conclusion that his lie during the investigation, rather than his
FOP membership, was the substantial motivating force behind that decision.
Finally, Mr. Kohl contends that “Chief Burbank participated in the issuance of a BOLO
against Kohl.” (Id. ¶ 86.) He characterizes the BOLO as “erroneous” (id. ¶ 47), but Mr. Kohl
does not allege that anyone involved with its issuance (including Chief Burbank) knew, or should
have known, that the information was incorrect. In fact, he contradictorily alleges that its
issuance was “negligent.” (Id.) In short, the BOLO does not add to Mr. Kohl’s claim of
The non-conclusory allegations against Chief Burbank are not enough to find him
personally liable under § 1983.
Mr. Kohl’s allegations do not allow the court to draw a reasonable inference that any of
the Defendants are liable for the misconduct alleged. Accordingly, the Defendants’ motion to
partially dismiss Mr. Kohl’s complaint (Docket No. 13) is GRANTED, and Mr. Kohl’s second
cause of action asserting a claim under 42 U.S.C. § 1983 is hereby DISMISSED WITH
SO ORDERED this 7th day of March, 2017.
BY THE COURT:
U.S. District Court Judge
Mr. Kohl briefly remarks in his opposition that if the court finds the allegations lacking,
he should be allowed to file an amended complaint. (See Opp’n at 3–4.) Given the procedural
posture and stage of this case, the court declines to do so.
First, Mr. Kohl has had a series of opportunities to amend his allegations. He initially
filed his claim with two other plaintiffs in 2012. (See Hollenbach v. Burbank, Case No. 2:12-cv608-TS-BSW (D. Utah).) On May 9, 2016, the court severed Mr. Kohl’s second amended
complaint. (See Hollenbach, Mot. Sever, Docket No. 106; May 9, 2016 Order, Docket No. 111.)
After his case was severed, Mr. Kohl re-filed his complaint in this case and, after the Defendants
filed an earlier motion to dismiss raising the same issues, he amended it to stave off dismissal.
(See Aug. 8, 2016 Compl., Docket No. 2; Oct. 13, 2016 Mot. Dismiss, Docket No. 5; October
27, 2016 Am. Compl., Docket No. 11.) When the Defendants filed their second motion to
dismiss (the one now before the court), he had an opportunity to respond with a substantive
motion for leave to amend and produce a proposed amended complaint. He did not do so.
Instead, he embeds a brief request to amend in his opposition. (See Opp’n at 3–4.)
Second, the parties completed fact discovery on the § 1983 claim on March 24, 2016.
(See Mot. Dismiss at 4 (citing Atty Planning Mtg. Rep. at p. 3, Docket No. 40 in Hollenbach).)
Discovery no doubt illuminated the allegations in his complaint. But he did not take advantage
of that situation and chose to rest his case on the allegations already filed with the court.
For the foregoing reasons, leave to amend is not an appropriate remedy now.
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