Hollenbach v. Burbank et al
MEMORANDUM DECISION AND ORDER - granting 18 Motion to Dismiss. Plaintiffs FMLA claim is dismissed with prejudice. The remaining claims are dismissed without prejudice. Plaintiff may file a new amended complaint within fourteen (14) days of this order. If Plaintiff does not amend within the allotted time, this case will be closed. Signed by Magistrate Judge Dustin B. Pead on 5/22/2017. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CHRIS BURBANK in his individual
Case No. 2:16-cv-00918-DBP
capacity; MELODY GRAY in her individual
capacity; and SALT LAKE CITY, through
Magistrate Judge Dustin B. Pead
its Police Department and its Civil Service
Commission for the official actions of the
The parties consented to the court’s jurisdiction under 28 U.S.C. 636(c). (ECF No. 16.) The
matter is presently before the court on Defendants’ Motion to Dismiss. (ECF No. 18.) Plaintiff’s
Amended Complaint alleges four causes of action under § 1983. (ECF No. 17.) Plaintiff claims
Defendants unlawfully interfered with his: rights under the Family and Medical Leave Act, dueprocess rights, First Amendment right to free speech, and First Amendment right to freely
associate. (See id.) Plaintiff alleges Defendants unlawfully discriminated against him based on
his affiliation with the Fraternal Order of Police. 1 Plaintiff claims he was passed over for
promotion, disciplined more harshly, denied leave, and otherwise mistreated as a result of this
affiliation. (Id.) On November 8, 2013, plaintiff received a letter notifying him of his termination
While Plaintiff does not allege this is a labor union, the parties treat it as such in their briefing.
For purposes of the present motion, the court assumes it is a labor union.
for his conduct related to a certain burglary investigation. He appealed his termination. Plaintiff’s
appeal is still ongoing at the administrative level. (ECF No. 21 at 11.)
STANDARD OF REVIEW
To survive, a complaint must contain “enough facts to state a claim to relief that is plausible
on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The court accepts factual
allegations “as true and construe[s] those allegations, and any reasonable inferences that might
be drawn from them” in a plaintiff’s favor. Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir.
2002). “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). Nonetheless, conclusory allegations without
supporting factual allegations are insufficient to state a claim for relief. See id. (“Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”).
The claim against Defendant Gray must be dismissed
a. Parties’ Arguments
Defendants argue that Plaintiff’s claim against Defendant Gray fails because Plaintiff’s
Complaint alleges only a single event in which Defendant Gray personally participated.
Specifically, Plaintiff alleges Defendant Gray “denied [Plaintiff] compensation while [he] was
attending his disciplinary appeals without process.” (ECF No. 18 at 8.) Defendants contend this
allegation is insufficient to state a claim against Defendant Gray for a deprivation of Plaintiff’s
federally-guaranteed rights because he was not entitled to compensation after his termination.
Plaintiff argues he sufficiently alleged a claim against Defendant Gray by alleging that she
denied Plaintiff compensation while he attended his disciplinary appeals. Plaintiff also argues the
claim is sufficient because he alleges Defendant Gray “participated in” discriminatory practices.
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b. Plaintiff does not properly allege any claim against Defendant Gray
Plaintiff fails to allege Defendant Gray participated in any unlawful conduct. First, Plaintiff
must allege Defendants deprived him of a protectable property interest “to prevail on either a
procedural or substantive due process claim . . . .” Teigen v. Renfrow, 511 F.3d 1072, 1078 (10th
Cir. 2007) (affirming decision to dismiss a due-process claim where the complaint did not allege
deprivation of a protectable property interest). While Plaintiff makes conclusory allegations that
he was deprived of compensation without due process, Plaintiff fails to allege any facts that show
he had any “legitimate claim of entitlement” to compensation after his termination. Id. Also,
Plaintiff does not argue in his opposition that he had any protectable property interest in posttermination pay. Thus, his due-process claim against Grey fails because Plaintiff has identified
no protectable property interest in post-termination pay.
Rather than describe any legitimate claim of entitlement to compensation, Plaintiff instead
cites Rule 8’s liberal pleading standard. While the standard is no doubt liberal, it does not win
the day for Plaintiff here. 2 Plaintiff alleges he was deprived of pay, but Defendants point out that
Plaintiff had no property interest in that pay. Plaintiff cannot prevail by relying on the pleading
standard. Instead, he must demonstrate the alleged denial is legally sufficient to support his dueprocess claim. Here, that means demonstrating he had a legitimate claim of entitlement to posttermination pay. Plaintiff fails to do so.
Second, Plaintiff’s argument that he alleged Defendant Gray “participated” in discriminatory
policies also misses the mark. “The plaintiff must show the defendant personally participated in
the alleged violation . . . and conclusory allegations are not sufficient to state a constitutional
Additionally, the standard is less liberal than Plaintiff suggests. He cites a standard from several
cases predating Twombly and Iqbal, including one case setting forth the standard of review for
pro se complaints, which is more lenient than the standard applied to complaints attorneys draft.
(ECF No. 21 at 14) (citing Huggins v. Hilton, 180 F. App’x 814 (10th Cir. 2006)).
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violation.” Jenkins v. Wood, 81 F.3d 988, 994 (10th Cir. 1996). “When various officials have
taken different actions . . . the plaintiff's facile, passive-voice showing that his rights ‘were
violated’ will not suffice.” Pahls v. Thomas, 718 F.3d 1210, 1225–26 (10th Cir. 2013) “Likewise
insufficient is a plaintiff's more active-voice yet undifferentiated contention that “defendants”
infringed his rights.” Id. Plaintiff makes only the single factual allegation against Defendant
Gray discussed above, which Plaintiff has not shown to be legally relevant. Plaintiff makes no
other factual allegation regarding Defendant Gray, other than to identify her as a party. Some of
the remaining allegations refer generally to Defendants, but this does not sufficiently state a
claim against Defendant Gray. Pahls condemns this very pleading strategy. Plaintiff may not
make the “undifferentiated contention that ‘defendants’ infringed his rights.” Id. Instead, he must
set forth facts establishing each individual defendant’s personal participation. Based on the
foregoing, the claim against Defendant Gray must be dismissed.
Plaintiff does not properly allege a violation of his due-process rights
a. Parties’ Arguments
Defendants argue Plaintiff’s due-process claim fails because his administrative appeals are
ongoing after the Utah Court of Appeals remanded the case to the Salt Lake City Civil Service
Commission. Also, Defendants argue this claim should be dismissed because Judge Stewart
previously dismissed it (before Plaintiff’s case was severed from another case pending in this
District) based on the Commission’s quasi-judicial immunity. See Hollenbach et al. v. Burbank et
al., Civil No. 2:12-cv-608 (D. Utah). Finally, Defendants argue in their reply that Plaintiff does
not allege any legally-relevant infirmity with his pre-deprivation review process.
Plaintiff contends that his appeal to the Commission does not form the basis of his dueprocess claim. Instead, Plaintiff claims his due-process claim stems from: (1) Defendant Gray
depriving Plaintiff of compensation while he pursued his disciplinary appeals, (2) Chief Chris
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Burbank’s failure to investigate the underlying facts prior to Plaintiff’s pre-termination hearing,
and (3) the Salt Lake City and the Salt Lake City Police Department exerting pressure on the
Civil Service Commission to reject Plaintiff’s notice of appeal.
b. Plaintiff does not allege any pre-deprivation violation of due process
The Amended Complaint details several events that occurred during post-deprivation
proceedings (i.e. after Plaintiff’s termination). Nonetheless, Plaintiff clarifies in his opposition
that he challenges only the pre-deprivation process he received because his post-termination
proceedings are ongoing. Government employees with a property interest in their job are entitled
to a pre-termination hearing. See Riggins v. Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009).
That hearing requires: (1) ‘oral or written notice [to the employee] of the charges against him;’
(2) ‘an explanation of the employer’s evidence and  an opportunity [for the employee] to
present his side of the story.’” Montgomery v. City of Ardmore, 365 F.3d 926, 936 (10th Cir.
2004) (quoting Cleveland Bd. Of Educ. v. Loudermill, 470 U.S. 532 (1985)). “A full evidentiary
hearing is not required prior to an adverse employment action.” West v. Grand Cty., 967 F.2d
362, 367 (10th Cir. 1992). Rather, the “individual entitled to due-process protection needs only to
be given notice and an opportunity to respond.” Id.
As Defendants correctly point out, Plaintiff does not argue or allege that he was deprived of
the pre-deprivation process required by Loudermill. Instead, he refers to Defendant Gray’s
conduct earlier addressed. That due-process claim fails for lack of property interest discussed
earlier. Also, the claims regarding Defendant Gray relate only to the post-termination time
period, which Plaintiff claims not to challenge.
Next, Plaintiff alleges that Defendant Burbank deprived him of pre-deprivation due process
by failing to investigate “circumstances of the burglary.” (ECF No. 21 at 14.) Unfortunately for
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Plaintiff, Loudermill does not require any pre-hearing investigation, or any pre-termination
investigation. Plaintiff cites no authority that requires any investigation.
Finally, Plaintiff refers to post-termination process before the Civil Service Commission. Yet
he simultaneously claims he is not pursuing relief here for any post-deprivation conduct of that
entity because his appeal process is ongoing. Plaintiff may believe there is some due-process
claim he can bring related to comments made to the CSC, but Plaintiff offers no authority to
support that belief. Based on Plaintiff’s briefing, it appears his due-process claim changed since
he initially drafted his Complaint. The court dismisses the due-process claim because it fails to
allege any violation of Plaintiff’s pre-deprivation due-process rights. If Plaintiff elects to file an
amended complaint, he is instructed to remove allegations no longer material to his claim.
First Amendment claims
a. Parties’ Arguments
Defendants contend Plaintiff cannot meet the Pickering/Connick test, which requires a
plaintiff making certain First Amendment claims to establish three factors: (1) the employee’s
First Amendment activity involves a matter of public concern, (2) the employee’s interest in the
protected activity outweighs the employer’s interest in regulating it, and (3) the protected activity
was a substantial motivating factor in the employer’s decision to take adverse action. (ECF No.
18 at 11–15.) 3 Defendants argue Plaintiff’s freedom-of-association claim fails because
Plaintiff’s membership in a union that is not party to a collective-bargaining agreement does not
Defendants also correctly note that an employer has an affirmative defense available under
Pickering/Connick. See Cillo v. City of Greenwood Vill., 739 F.3d 451, 461 (10th Cir. 2013) (“If
the employee establishes these three factors, he wins unless (4) the employer establishes it would
have taken the same action in the absence of the protected activity.”).
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constitute a matter of public concern. Defendant also argues Plaintiff’s free-speech claim fails
because the alleged speech does not touch on a matter of public concern. 4
Plaintiff contends that his union membership and speech related to his union, even one
without a collective-bargaining agreement, are exempt from the public-concern analysis because
such activity is presumed to be of public concern. Alternatively, Plaintiff argues that his union
association and speech touches on a matter of public concern.
b. Plaintiff fails to allege his speech or association touched on any public
1. The public-concern prong of Pickering/Connick applies to Plaintiff’s
union-related First Amendment claims.
Defendants assert that Plaintiff must establish the first prong of the Pickering/Connick test to
succeed on his speech and association claims. The court easily agrees with Defendants regarding
Plaintiff’s freedom of speech claim. See Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1138–
39 (10th Cir. 2006) (noting the public-concern test applies to free speech claims by public
employees); King v. Downing, 58 F. App’x 830, 833 (10th Cir. 2003) (“The district court
correctly ruled, however, that where the free speech and free association claims are identical, as
they are in this case, application of the Pickering/Connick public-concern test is appropriate.”)
(citing Schalk v. Gallemore, 906 F.2d 491, 498 n. 6 (10th Cir.1990)); see also Cillo v. City of
Greenwood Vill., 900 F. Supp. 2d 1181, 1200 (D. Colo. 2012), rev'd, 739 F.3d 451 (10th Cir.
2013) (setting forth a thorough analysis of union-related First Amendment claims against
government employers in the Tenth Circuit). Plaintiff offers no authority to suggest the Tenth
Circuit has ever exempted a plaintiff from meeting the public-concern element when bringing a
Given the court’s resolution of the arguments mentioned, the court will not address Defendants’
arguments regarding other elements of the Pickering/Connick test.
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A. Association claim
The association claim is a more difficult question. The court will begin with a brief history of
the relevant law. At the outset, neither the Tenth Circuit “nor the Supreme Court has determined,
as a general matter, whether Pickering’s public-concern requirement applies to freedom of
association claims.” Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1138 (10th Cir. 2006). The
Shrum court held that the public-concern element did not apply to freedom-of-association claims
related to unions with which the municipality at issue entered a collective-bargaining agreement.
Shrum at 1138. Subsequently, the Tenth Circuit narrowed the class of cases potentially exempt
from the public-concern prong in Merrifield v. Bd. of Cty. Comm'rs for Cty. of Santa Fe, 654
F.3d 1073, (10th Cir. 2011). The Merrifield court held “the public-concern requirement applies
to a claim that a government employer retaliated against an employee for exercising the
instrumental right of freedom of association for the purpose of engaging in speech, assembly, or
petitioning for redress of grievances.” Id. at 1081–82. Recently, the Tenth Circuit declined to
decide whether association with unions without a collective-bargaining agreement, such as the
Fraternal Order of Police here, triggers application of the public-concern prong. See Cillo v. City
of Greenwood Vill., 739 F.3d 451, 461 n.17 (10th Cir. 2013) (“It is not clear whether the first
factor applies to retaliation claims involving union association, particularly where there is not a
collective bargaining agreement in place.”).
After reviewing Tenth Circuit precedent, the court finds the public-concern element applies
to freedom-of-association claims involving unions with which a municipality has not entered a
collective-bargaining agreement. While Shrum eschewed the public-concern element in an
association case involving a union, the Tenth Circuit predicated its decision on the collectivebargaining agreement between the union at issue and the defendant municipality. Shrum at 1139
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(finding defendants “estopped from reneging on th[e collective-bargaining] agreement . . . by
claiming that union association is not a matter of public concern”). The reasoning in Shrum
suggests the exception should be read narrowly. Additionally, the 2013 Cillo case shows that the
Tenth Circuit views a union with a collective-bargaining agreement as distinguishable from a
union without one. See Cillo 739 F.3d at 461 n.17. Relatedly, Merrifield further suggests the
Shrum exception be read narrowly because that case suggests many association claims are
subject to the public-concern requirement. Merrifield at 1081–82 (“the public-concern
requirement applies to a claim that a government employer retaliated against an employee for
exercising the instrumental right of freedom of association for the purpose of engaging in speech,
assembly, or petitioning for redress of grievances”). Admittedly, Merrifield did not involve
union association. The court notes Merrifield only to demonstrate that the Tenth Circuit does not
appear inclined to create additional exemptions from the Pickering/Connick test’s public-concern
element. Here, Plaintiff does not suggest the Fraternal Order of Police entered a collectivebargaining agreement with Salt Lake City. Accordingly, the court concludes Plaintiff must
establish that his association with the union is a matter of public concern.
Plaintiff argues the public-concern element should not apply because the Tenth Circuit found
for a plaintiff asserting a union-related First Amendment claim without resorting to the publicconcern prong of Pickering/Connick in Morfin v. Albuquerque Public Schools, 906 F.2d 1434
(10th Cir. 1990). Morfin does not stand for the proposition for which Plaintiff cites it. The Tenth
Circuit later expressly found that Morfin did not consider “whether the public-concern
requirement would apply to association-based retaliation claims.” Merrifield at 1084. Instead, the
Morfin court rested its decision on qualified immunity and whether the plaintiff set forth a
clearly-established right. Subsequent Tenth Circuit precedent confirms that Morfin did not
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remove the public-concern prong from the Pickering/Connick test in the context of union-related
First Amendment claims. See Merrifield at 1084; Cillo v. City of Greenwood Vill., 739 F.3d 451,
461 (10th Cir. 2013) (“It is not clear whether the first factor applies to retaliation claims
involving union association, particularly where there is not a collective bargaining agreement in
place.”). In isolation Morfin would appear to support Plaintiff’s argument. Yet the Tenth Circuit
has since undermined, if not rejected, such a reading of Morfin. See Shrum at 1138; Merrifield at
1081–82; Cillo 739 F.3d at 461 n.17.
Finally, the court recognizes that the public-concern analysis may be foregone in certain
circumstances that do not involve unions with collective-bargaining agreements. The court finds
here that Plaintiff has not alleged or argued that this case involves the appropriate circumstances
to excuse him from establishing a public concern. Cf. Schalk v. Gallemore, 906 F.2d 491, 498
n.6 (10th Cir. 1990) (noting “a public school teacher fired for being married would have a
colorable freedom of association claim against her employer, but would likely not satisfy the
public concern test”).
2. Plaintiff does not allege facts to suggest his speech or association
touched on any public concern.
A matter is of public concern where it may “be fairly considered as relating to any matter of
political, social, or other concern to the community.” Schalk v. Gallemore, 906 F.2d 491, 495
(10th Cir. 1990) (citing Connick v. Myers, 461 U.S. 138 (1983). “[A]n employee’s speech or
activity does not touch on a matter of public concern merely because it is union-related.” King v.
Downing, 58 F. App’x 830, 833 (10th Cir. 2003). Instead, the court must consider “the content,
form, and context of a given statement.” Connick at 147–48. In doing so, the court examines the
facts as the employer reasonably believed them to be. Waters v. Churchill, 511 U.S. 661, 681
(1994) (plurality opinion).
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Plaintiff does not allege he engaged in speech. In fact, he does not argue he was prohibited
from speaking. Instead, he suggests Defendants denied him “access” to a bulletin board and a
recruitment class. (ECF No. 17 at 9.) Rather than suggesting the proposed speech involved a
public concern, the Amended Complaint alleges Defendants and Plaintiff had no more than an
“internal personnel dispute” regarding the proper time for Plaintiff to speak about the Fraternal
Order of Police. Dill v. City of Edmond, Okl., 155 F.3d 1193, 1202 (10th Cir. 1998). Plaintiff
makes no effort to describe how the “access” he sought constitutes speech, let alone speech of a
public concern. It is not enough that given subject matter under hypothetical circumstances could
constitute a matter of public concern. “What is actually said on that topic must itself be of public
concern.” Wilson v. City of Littleton, Colo., 732 F.2d 765, 769 (10th Cir. 1984).
Similarly, Plaintiff fails to allege facts that could support a claim that his association with the
union is matter of public concern. The district court in Cillo found union association constituted
a matter of public concern because the union at issue sought a collective-bargaining agreement.
See Cillo v. City of Greenwood Vill., 900 F. Supp. 2d 1181, 1193–94 (D. Colo. 2012)
(concluding union seeking “pay parity with nearby jurisdictions and the question of whether
public employees should be given the right to bargain collectively are issues that go beyond
purely private interests and touch on matters of genuine public concern.”) rev'd on other
grounds, 739 F.3d 451 (10th Cir. 2013). Here, Plaintiff does not allege the purpose or goals of
the Fraternal Order of Police. Likewise, his opposition to Defendants’ Motion to Dismiss does
not proffer any purpose. The court cannot find Plaintiff’s association implicated any public
concern because he does not allege or argue his association had any public purpose.
Plaintiff’s FMLA claim must be dismissed
Plaintiff concedes his first cause of action related to the Family and Medical Leave Act
(“FMLA”) should be dismissed. (See ECF No. 21 at 6.) Based on the foregoing, all of Plaintiff’s
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claims will be dismissed. Plaintiff’s FMLA claim is dismissed with prejudice. Given the
particular deficiencies with the remaining claims, the court is not convinced the Amended
Complaint cannot be salvaged if the proper facts are added. Accordingly, the dismissal is without
prejudice as to all claims other than the FMLA claim. Plaintiff may file an amended complaint,
but must do so no later than fourteen days from the date of this order. Additionally, Plaintiff is
warned that any further failure to state a viable claim will result in dismissal with prejudice.
For the reasons set forth above, the Court GRANTS Defendants’ Motion to Dismiss. (ECF
No. 18.) Plaintiff’s FMLA claim is dismissed with prejudice. The remaining claims are dismissed
without prejudice. Plaintiff may file a new amended complaint within fourteen (14) days of this
order. If Plaintiff does not amend within the allotted time, this case will be closed.
Dated this 22nd day of May 2017.
By the Court:
Dustin B. Pead
United States Magistrate Judge
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