Hollenbach v. Burbank et al

Filing 34

MEMORANDUM DECISION AND ORDER denying 27 Motion to Dismiss for Failure to State a Claim. Plaintiff is further ORDERED to correct the errors noted above by filing a modified version of his Second Amended Complaint within fourteen d ays. Plaintiff may only make the corrections noted by the court and may not otherwise amend his pleading. Defendants must file an answer within twenty-one days of Plaintiff filing a corrected Second Amended Complaint. Signed by Magistrate Judge Dustin B. Pead on 11/17/2017. (las)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
GREGORY HOLLENBACH,
Plaintiff,
v.

MEMORANDUM DECISION

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
Defendants;
Defendants.
BACKGROUND
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 Second Amended
Complaint for Failure to State a Claim.” (ECF No. 27). Plaintiff’s Second Amended Complaint
alleges a single FMLA claim and three causes of action under § 1983 related to alleged
deprivations of Plaintiff’s right to due process, free speech and free association. (ECF No. 24).
Plaintiff alleges Defendants unlawfully discriminated against him based on his affiliation with
his police union, the Fraternal Order of Police (“FOP”).
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). In making this determination,
the court accepts factual allegations “as true and construe[s] those allegations, and any

reasonable inferences that might be drawn from them, in the light most favorable to the
plaintiff.” 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.’”).
ANALYSIS
I.

Due Process claim
a. Parties’ Arguments

Defendants argue that Plaintiff fails to allege any constitutionally-protected property interest
for mileage reimbursements or pay for off-duty time spent attending Plaintiff’s administrative
appeal because such compensation is discretionary. (ECF No. 27 at 13–14). Next, Defendants
argue that Plaintiff has not adequately pled facts to demonstrate that Chief Burbank was a biased
decision maker because Plaintiff only concludes Chief Burbank was biased without pleading
facts to support that conclusion. (Id. at 15). Alternatively, Defendants argue Chief Burbank’s
alleged bias is insufficient to support Plaintiff’s claims because another unbiased reviewer, Chief
Deputy Coleman, conducted an initial internal affairs investigation before Chief Burbank
imposed discipline. Likewise, Defendants point out, the Civil Service Commission (“CSC”)
upheld the discipline imposed by Chief Burbank. Finally, Defendants argue that Plaintiff cannot
bring a claim for post-termination deprivation of due process because the delay caused by the
CSC’s rejection of Plaintiff’s appeal as untimely (later reversed by the Utah Court of Appeals)
does not provide a basis for a due-process claim. (Id. at 17).

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Plaintiff responds by arguing that constitutionally-protected property interests can be created
by unwritten policies such as the one he alleges entitled him to mileage reimbursements and pay
for time spent attending administrative appeals. (ECF No. 30 at 15–17). Plaintiff also contends
he alleged sufficient facts for the court to infer Chief Burbank was biased. (Id. at 17–18). As to
Defendants’ alternative argument, Plaintiff argues the court cannot determine whether other
individuals performed proper reviews without delving into factual matters not subject to
resolution given the present posture of this case. (Id. at 18–19). Finally, Plaintiff argues the
department’s role in the CSC’s rejection of his appeal constitutes a due-process violation.
b. Plaintiff properly alleges a due-process claim
1. Property Interest
Plaintiff alleges a sufficient property interest to support his due-process claim. 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). Unwritten policies can create an entitlement. See Perry v. Sindermann, 408 U.S. 593,
599 (1972); see Schulz v. City of Longmont, Colorado, 465 F.3d 433, 444 (10th Cir. 2006)
(“State law sources for property interests can include statutes, municipal charters or ordinances,
and express or implied contracts.”). Plaintiff alleges that he was denied compensation without
due process because he was denied compensation while attending his disciplinary appeals
contrary to department policy. (ECF No. 24 at 4). Plaintiff also alleges he was denied a mileage
reimbursement contrary to department policy. (Id.) Accordingly, Plaintiff adequately alleges he
was deprived of property in the form of wages and reimbursements owed to him.

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Defendants believe that Plaintiff should have included additional factual detail to support his
claim that the alleged policy existed. Yet Defendants have not cited any authority to support their
position. The alleged facts satisfy the requirements of Rule 8.
Next, Defendants make arguments about the existence or mechanics of the policy alleged.
These matters raise factual issues not appropriate for a motion to dismiss. The court declines to
review the evidence Defendants submitted on this point. For purposes of the present review, the
court is restricted to the facts alleged in the Second Amended Complaint construed in the light
most favorable to Plaintiff. See Gaines, 292 F.3d at 1224.
2. Bias
At the outset, the court notes that Plaintiff’s Second Amended Complaint actually alleges
“Chief Burbank was not a biased decision maker in respect to Hollenbach’s investigation and
discipline.” (ECF No. 24 at 9). Yet based on the remainder of that pleading and Plaintiff’s
arguments opposing the motion to dismiss, this allegation almost certainly resulted from a
typographical error. Accordingly, Plaintiff is instructed to correct this error within fourteen days
of the court’s order by filing a corrected version of the Second Amended Complaint. Plaintiff
may only make the corrections noted by the court and may not otherwise amend his pleading.
Defendants must file an answer within twenty-one days of Plaintiff making this correction.
Turning to the merits of the parties’ arguments, Defendants have not identified any
deficiency in Plaintiff’s allegations that Chief Burbank’s was biased. “The Due Process Clause
entitles a person to an impartial and disinterested tribunal.” McClure v. Indep. Sch. Dist. No. 16,
228 F.3d 1205, 1215 (10th Cir. 2000). Notwithstanding the typographical error with Plaintiff’s
Second Amended Complaint, Plaintiff sets forth allegations suggesting Chief Burbank harbored

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bias against Plaintiff. For example, Plaintiff alleges that Chief Burbank improperly interfered
with Plaintiff’s administrative appeal. (ECF No. 24 at 10).
Despite these allegations, Defendants argue Plaintiff must establish “a substantial showing of
personal bias” to prevail. (ECF No. 27 at 15) (quoting Newton v. Utah Nat. Guard, 688 F. Supp.
2d 1290, 1308 (D. Utah 2010)). Defendants also suggest that the claims of bias are irrelevant
because an unbiased decision maker, Deputy Chief Coleman, conducted the initial investigation
of the allegations against Plaintiff, which led to his discipline. (ECF No. 27 at 16) (citing
Robbins v. Merrell, No. 2:15-cv-156, 2017 WL 1628879 at *7 (D.Utah May 1, 2017)). Yet
Defendants cite no case where a court dismissed on either basis at the pleading stage. Instead,
Defendants cite cases decided at the summary-judgment stage. Summary judgment presents a
much more suitable procedural posture for such decision given that Plaintiff allegations must be
taken as true for purposes of this motion. The Newton court weighed whether a party made a
“substantial showing” of bias. Such an inquiry requires a court to determine the sufficiency of a
party’s evidence. At the pleading stage, the court must draw all reasonable inferences in
Plaintiff’s favor. Gaines at 1224. With that standard of review in mind, the court does not find
Plaintiff’s allegations deficient. Similarly, the court cannot determine the propriety of Deputy
Chief Coleman’s actions, or the adequacy of any other stages of administrative review, without
considering facts not alleged in the complaint. Accordingly, the court does not decide here
whether Plaintiff received additional review that could cure Chief Burbank’s alleged bias.
3. Delay
Third, Defendants fail to persuade the court that Plaintiff’s allegations of purposeful delay
can never give rise to a due-process claim. Defendants argue “there does not appear to be any
authority to support [Plaintiff’s] theory against the City.” (ECF No. 27 at 17). Yet this

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unsupported argument does not meet the standard for a motion to dismiss. It is incumbent on
Defendants to demonstrate Plaintiff’s claim fails as a matter of law assuming the truth of his
allegations. Defendants have not done so. In the absence of some authority on the issue, the court
is unwilling to announce that allegations of intentionally interfering with an independent board’s
review of a matter in an attempt to cause delay can never give rise to a due-process claim.
II.

First Amendment claims
a. Parties’ Arguments

Defendants argue Plaintiff’s freedom-of-association claim fails because he has not alleged
his Fraternal Order of Police (“FOP”) union association touched on any matter of public concern
or that his union membership was a substantial motivating factor in his termination. (ECF No. 27
at 18–20). Next, Defendants argue that Plaintiff’s free-speech claim fails because Plaintiff has
not alleged that his proposed speech touched on a matter of public concern. (Id. at 20).
Plaintiff argues that his FOP union membership touched on a matter of public concern
because the union was created to “address corruption between the Department and SLPA” and
because the union actually conducted a political rally related to state retirement benefits. (ECF
No. 30 at 21–22). Plaintiff contends he sufficiently alleged facts that show his FOP union
membership was a substantial motivating factor in his discipline because the he suffered a
number of adverse actions that “did not begin in earnest” until he associated with the union. (Id.
at 22). Finally, Plaintiff argues that his speech touched on a matter of public concern because he
intended to post items on the bulletin board and speak to the recruitment class about issues of
legislation, corruption, legal representation, and political rallies. (Id. at 23).

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b. The court declines to dismiss Plaintiff’s speech and association claims for
lack of public concern
1. Defendants have not persuaded the court to dismiss Plaintiff’s freespeech claim.
Defendants have not persuaded the court to dismiss Plaintiff’s speech claim. Defendants
claim the alleged speech does not touch on a matter of 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). To evaluate whether speech touches on a matter of
public concern, the court must consider “the content, form, and context of a given statement.”
Connick at 147–48. “It is not enough that the subject matter be of public concern; the content of
the expression must also be of public concern.” Withiam v. Baptist Health Care of Oklahoma,
Inc., 98 F.3d 581, 583 (10th Cir. 1996) (citing Wilson v. City of Littleton, Colo., 732 F.2d 765,
769 (10th Cir. 1984)). The court must examine the facts as the employer reasonably believed
them to be. Waters v. Churchill, 511 U.S. 661, 681 (1994) (plurality opinion).
Here, Defendants do not analyze Plaintiff’s revised allegations. Instead, they merely ask the
court to find, as it did previously, that Plaintiff describes a mere internal personnel dispute. The
court is unable to do so. While Plaintiff’s original complaint was completely devoid of any
allegation that could show his proposed speech touched on a public concern, Plaintiff’s Second
Amended Complaint alleges he intended to speak to the recruitment class and those who read the
bulletin board about “legislation, corruption, . . . legal representation, . . . events and rallies.”
(ECF No. 24 at 13). One case on which the court relied in its earlier decision states that “speech
which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city
officials . . . concerns matters of public import.” Dill v. City of Edmond, Okl., 155 F.3d 1193,
1202 (10th Cir. 1998). Defendants make no effort to distinguish this case.
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The court clarifies that it denies Defendants’ request to dismiss this count because they have
not met their burden as movants, not because the court approves of Plaintiff’s argument on this
point. Plaintiff appears to suggest he need not demonstrate his speech touched on a matter of
public concern because it was related to a union. Yet, as the court previously discussed at some
length, Plaintiff has not cited any case in which the Tenth Circuit excused a Plaintiff from
pleading and proving that allegedly-protected speech touched on a matter of public interest. (See
ECF No. 23 at 7). Further, the Tenth Circuit has found “an 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). Plaintiff’s argument is contrary to the court’s earlier order
and unsupported by the authorities he cites.
2. Plaintiff alleges his union association touched on a public concern.
Defendants have not identified any fatal flaw in Plaintiff’s association claim. Plaintiff must
demonstrate that his association implicates a matter of public concern. (ECF No. 23 at 8–10).
Here, Plaintiff contends his association with the FOP union meets this requirement. Plaintiff
alleges that he “created the FOP to address corruption between [the Salt Lake] Department and
the SLPA [union].” (ECF No. 24 at 10). Defendants do not contend with this allegation. It
appears to the court that alleged police corruption constitutes a matter of public concern.
Defendants will almost certainly deny such corruption exists, and it may not actually exist.
Nonetheless, at this stage of the proceedings, Plaintiff’s allegations must be credited.
Next, the court rejects Defendants’ argument that Plaintiff failed to allege his union
membership was a substantial factor is his discipline. First, Plaintiff alleges his union
membership was the primary–if not only–motivating factor in his discipline. It is not possible to
read Plaintiff’s allegations any other way. Next, to the extent Defendants want to test the
sufficiency of the evidence, such a matter must be addressed by the fact finder. See Wren v.
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Spurlock, 798 F.2d 1313, 1317 (10th Cir. 1986) (finding question of substantial motivating factor
for termination “raises a question of fact for the jury.”)
On the other hand, Defendants do point out that Plaintiff failed to identify the specific
Defendants at issue in his association claim. This failure is somewhat troubling because the court
earlier admonished Plaintiff to identify the specific Defendants alleged to have violated
Plaintiff’s rights. (ECF No. 23 at 4). Nonetheless, Plaintiff’s Opposition clarifies his allegations.
The Opposition suggests Chief Burbank and the City infringed on Plaintiff’s First Amendment
rights. (ECF No. 30 at 20). At the same time Plaintiff makes the technical correction related to
his allegation of Chief Burbank’s bias, he must also replace all instances of “Defendants” in his
First Amendment allegations with Chief Burbank, the City, or both, as appropriate. Plaintiff is to
make no further amendments to his complaint other than those described in this order. Plaintiff’s
corrected complaint must be filed within 14 days of this order.
III.

Plaintiff’s FMLA claim

Finally, the parties discuss Plaintiff’s claim under the Family and Medical Leave Act
(“FMLA”). Defendants clarify that they do not seek dismissal of Plaintiff’s FMLA claim, but
they note that the court earlier dismissed Plaintiff’s § 1983 claim to the extent it was predicated
on alleged FMLA violations. (ECF No. 27 at 3 n.1 (citing ECF No. 23)); e.g. Coleman v. City &
Cty. of Broomfield, No. A05CV00847, 2005 WL 3527290, at *4 (D. Colo. Dec. 22, 2005)
(dismissing § 1983 claim that alleged plaintiff “was denied leave ‘to take care of her son who
had a serious medical condition’ . . . because [plaintiff’s] § 1983 claim mirrors a claim under the
FMLA.”) Accordingly, the court will not further address this issue because Defendants do not
seek dismissal of any claim. Also, while Defendants argue for certain allegations to be “stricken”
from the complaint, Defendants did not file a motion to strike and no such motion may be made
in a reply memorandum. (ECF No. 33 at 5); see D.U. Civ. R. 7-1(b)(1).
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ORDER
For the reasons set forth above, the Court DENIES Defendants’ Motion to Dismiss. (ECF
No. 28).
Plaintiff is further ORDERED to correct the errors noted above by filing a modified version
of his Second Amended Complaint within fourteen days. Plaintiff may only make the corrections
noted by the court and may not otherwise amend his pleading. Defendants must file an answer
within twenty-one days of Plaintiff filing a corrected Second Amended Complaint.
Dated this 17th day of November 2017.

By the Court:

Dustin B. Pead
United States Magistrate Judge

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