Pead v. Ephraim City et al
Filing
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MEMORANDUM DECISION AND ORDER granting 7 Motion to Dismiss the federal cause of action with prejudice and the remaining state law claims without prejudice. Signed by Judge Dee Benson on 12/12/18 (alt)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
DARREN PEAD,
Plaintiff,
MEMORANDUM DECISION
AND ORDER
vs.
EPHRAIM CITY, a political subdivision of
the State of Utah, and BRANT HANSON, an
individual,
Case No. 2:17-cv-1313
Judge Dee Benson
Defendants.
This matter is before the court on Defendants Ephraim City and Brant Hanson’s
(collectively “Defendants”) Motion to Dismiss Plaintiff’s Complaint. (Dkt. 7.) At oral argument
on the motion, Defendants were represented by Nathan Skeen. Plaintiff Darren Pead was
represented by Kathryn Harstad and Cameron Platt. At the conclusion of the hearing, the court
took the matter under advisement. Now, having further considered the law and facts relating to
the motions, the court renders the following Memorandum Decision and Order.
BACKGROUND
Plaintiff Darren Pead is a police officer who was at all times relevant to this case
employed by Ephraim City. In this lawsuit, Plaintiff seeks to recover from Ephraim City and its
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City Manager, Brant Hanson, for taking adverse action against him after he and other officers
reported what they claimed was illegal misconduct by their Chief of Police and sergeant. The
relevant facts, as set forth in Plaintiff’s complaint, are summarized as follows.1
According to Plaintiff, while working as an officer for the Ephraim City Police
Department, Plaintiff discovered that Chief of Police Ron Rasmussen had failed to fill out or
complete hundreds of police reports, dating back as far as 2008, in violation of city policy and
law enforcement practices. Additionally, Plaintiff noticed that Sergeant Len Gasser had
approved and “cleared” hundreds of Chief Rasmussen’s blank reports, and “[a]s a result of Chief
Rasmussen’s and Sgt. Gasser’s illegal misconduct, hundreds of reported crimes had gone
undocumented and un-investigated.” (Compl. ¶¶ 20-22.)
Upon discovering this, Plaintiff and two other officers met with the Ephraim City
Council and mayor to report the illegal misconduct of Chief Rasmussen and Sgt. Gasser.
Additionally, one of the other two officers reported the illegal misconduct to the Utah Attorney
General’s Office. (Compl. ¶¶ 23-25.)
Thereafter, the mayor and Defendant Hanson, in his capacity as the city manager,
interviewed all three of the officers concerning the allegations. During the meeting, Plaintiff
opined that Chief Rasmussen’s conduct was a violation of Utah Code Section 76-8-201, and
Plaintiff further asserted that this was an issue of “negligence and neglect” wherein hundreds of
crimes against Ephraim City citizens had not been investigated. (Compl. ¶ 30.)
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In reviewing a motion to dismiss, the court must accept the facts alleged in the complaint
as true and view them in the light most favorable to the plaintiff. See Mayfield v. Bethards, 826
F.3d 1252, 1255 (10th Cir. 2016).
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Plaintiff claims that during the meeting, and in response to these accusations, Defendant
Hanson threatened to “eliminate all personnel from the police department because the officers
had ‘elevated’ the problem by contacting the AG’s Office.” (Compl. ¶ 28(a).) Defendant
Hanson also said that he was “concerned about insubordination,” and he questioned Plaintiff’s
“code of ethics,” noting that the Chief had been with the City for 27 years and was “a member of
this family.” (Compl. ¶ 28( c).) Defendant Hanson told Plaintiff and the other officers that in
response to the allegations he would enlist the Utah County Sheriff’s Office to do an internal
investigation, but advised that the investigation would “tap into everybody a little bit,” including
Plaintiff and the other reporting officers. (Compl. ¶ 32.)
According to Plaintiff, the Utah County investigation directed very little attention to
Chief Rasmussen and Sgt. Gasser, but focused instead on Plaintiff and his behavior at the
Ephraim Police Department. (Compl. ¶¶ 36, 40.) Additionally, the Utah County investigative
report, which was later leaked to the media, cast Plaintiff in a negative light stating that
“[i]nformation and evidence was obtained showing that Officer Pead is and has been
insubordinate on several occasions” and accused Plaintiff of being “unprofessional in his
conduct.” (Compl. ¶ 48.) Additionally, Plaintiff claims that the City issued statements to the
press downplaying Chief Rasmussen’s and Sgt. Gasser’s misconduct, and disparaging Plaintiff
and the other two officers, asserting that their allegations were “unverifiable” and “purely
speculative.” (Compl. ¶ 51.)
Based on what they perceived were retaliatory actions, and because they were “unwilling
to endure illegal conduct by the Chief and Sergeant and the resulting coverup,” on June 28,
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2017, Plaintiff and the other two officers resigned from the police department. (Compl. ¶ 52.)
On December 26, 2017, Plaintiff filed suit in federal court asserting two causes of action.
First, Plaintiff asserts a claim under federal law, pursuant to 42 U.S.C. § 1983, claiming that
Defendants retaliated against him for exercising his First Amendment right to free speech.
Second, Plaintiff asserts a claim under state law against defendant Ephraim City for violating the
Utah Protection of Public Employees Act, Utah Code Ann. § 67-21-1, et seq. (“the Utah
Whistleblower’s Act”).
DISCUSSION
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
complaint must allege facts that, if true, “state a claim to relief that is plausible on its face.”
Wilson v. Montano, 715 F.3d 846, 852 (10th Cir. 2013); see also Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). The court must accept all well-pleaded allegations in the complaint as true
and “construe them in the light most favorable to the plaintiff.” Brown v. Montoya, 662 F.3d
1152, 1162 (10th Cir. 2011). Applying this standard, the court addresses each cause of action in
turn.
1.
Section 1983 Claim – Retaliation Based on the Exercise of Free Speech Protected
by the First Amendment
First, Plaintiff claims that Defendants violated his First Amendment right to free speech
when they retaliated against him after he “repeatedly reported Chief Rasmussen’s and Sgt.
Gasser’s illegal misconduct.” (Compl. ¶70.)
In Garcetti v. Ceballos, the Supreme Court reaffirmed that “the First Amendment
protects a public employee’s right, in certain circumstances, to speak as a citizen addressing
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matters of public concern.” 547 U.S. 410, 417 (2006). The Garcetti Court recognized the
inherent tension between an employee’s right to free speech and the government employer’s
right to exercise ‘a significant degree of control over their employees’ words and actions,’ and
concluded that ‘while the First Amendment invests public employees with certain rights, it does
not empower them to constitutionalize the employee grievance.’” Rohrbough v. University of
Colorado Hosp. Auth., 596 F.3d 741, 745 (10th Cir. 2010) (quoting Garcetti, 547 U.S. at 418);
see Lane v. Franks, 134 S.Ct. 2369, 2374 (2014) (“[T]he First Amendment protection of a public
employee’s speech depends on a careful balance between the interests of the employee, as a
citizen, in commenting upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its
employees.”).
To balance these competing interests, freedom of speech retaliation claims are governed
by a five-step inquiry referred to as the Garcetti/Pickering analysis. Nixon v. City & County of
Denver, 784 F.3d 1364, 1367 (10th Cir. 2015). Under this analysis, the court must consider:
(1) whether the speech was made pursuant to an employee’s official duties; (2)
whether the speech was on a matter of public concern; (3) whether the
government’s interest, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether
the protected speech was a motivating factor in the adverse employment action;
and (5) whether the defendant would have reached the same employment decision
in the absence of the protected conduct.
Helget v. City of Hays, 844 F.3d 1216, 1221 (10th Cir. 2017). The first three steps are to be
decided as a matter of law by the district court. The last two steps are ordinarily for the trier of
fact. Id. at 1222. In this case, Plaintiff’s freedom of speech retaliation claim can be decided at
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the first step because the court concludes, as a matter of law, that Plaintiff Pead’s statements
were made pursuant to his official duties.
Speech Pursuant to Official Duties
It is well-established that “when public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First Amendment purposes, and the
constitution does not insulate their communication from employer discipline.” Seifert v. Unified
Government of Wyandotte County, 779 F.3d 1141, 1151 (10th Cir. 2015). The United States
Court of Appeals for the Tenth Circuit has “taken a broad view of the meaning of speech that is
pursuant to an employee’s official duties.” Chavez-Rodriguez v. City of Santa Fe, 596 F.3d 708,
713 (10th Cir. 2010). The critical question under Garcetti is whether the speech at issue is
ordinarily “within the scope of an employee’s duties,” and speech falls within the scope of an
employee’s duties if it involves “the type of activities that the employee was paid to do.” Knopf
v. Williams, 884 F.3d 939, 945 (10th Cir. 2018) (quoting Lane, 134 S.Ct. 2379); see also ChavezRodriguez v. City of Santa Fe, 596 F.3d 708, 713 (10th Cir. 2010) (“[I]f an employee engages in
speech during the course of performing an official duty and the speech reasonably contributes or
facilitates the employee’s performance of the official duty, the speech is made pursuant to the
employee’s official duties.”).
No bright-line rule governs when employees are speaking as part of their official duties.
Lincoln v. Maketa, 880 F.3d 533, 538 (10th Cir. 2018). Therefore, courts are instructed to, on a
case by case basis, “take a practical view of all the facts and circumstances surrounding the
speech and the employment relationship.” Knopf, 884 F.3d at 946 (10th Cir. 2018) (quoting
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Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192, 1204 (10th Cir. 2007)). Many
facts may be relevant, including the tasks in an employee’s job description, the frequency with
which an employee performs a task, the subject matter of the employee’s speech, the recipient of
the speech, and the legal obligation for the employee to speak. Id. However, no one factor is
determinative. Id. (citing Brammer-Hoelter, 492 F.3d at 1203 (job description not dispositive);
Holub v. Gdowski, 802 F.3d 1149, 1156 (10th Cir. 2015) (frequency of performance is not
dispositive); Lane, 134 S.Ct. at 2379 (speech made about work is not dispositive); Rohrbough v.
University of Colorado Hosp. Auth., 596 F.3d 741, 747 (10th Cir. 2010) (speech made outside
chain of command is not dispositive)). Ultimately, the court must ask whether the employee was
performing the task they were paid to perform when they spoke. Id. “If so, the ‘speech was
therefore commissioned by his employer,’ and it enjoys no First Amendment protection. Knopf,
884 F.3d at 946 (quoting Thomas v. City of Blanchard, 548 F.3d 1317, 1323 (10th Cir. 2008)).
In this case, Plaintiff Pead, employed as a police officer, was responsible for
investigating criminal conduct. Specifically, Plaintiff’s primary duties consisted of “the
prevention and detection of crime and the enforcement of criminal statutes and ordinances.”
Utah Code Ann. § 53-13-103(a). While working as a police officer, Plaintiff discovered
evidence of what he considered to be criminal conduct committed by his superiors, and after
discovering this misconduct he and others reported it to the Ephraim City Council, the mayor,
and the Public Corruption Division of the Utah Attorney General’s Office. See Compl. ¶¶ 2, 2027. Plaintiff’s purpose in reporting the misconduct was to initiate an investigation into what he
believed was illegal behavior, and in so reporting, Plaintiff identified a specific criminal statute
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he believed had been violated. (Compl. ¶ 27.)
That Plaintiff was not specifically tasked with conducting internal affairs investigations
of his supervisors does not alter the court’s conclusion. Speech may fall within an employee’s
official duties even if it concerns an unusual aspect of the employee’s job, and even if it is not
explicitly required as part of the employee’s day-to-day responsibilities. See Brammer-Hoelter,
492 F.3d at 1203; Green, 472 F.3d at 800-01; see also Joyce v. North Metro Task Force, 2011
WL 2669162 (D. Colo. July 7, 2011) (unpublished) (“There is some support in the law to
conclude that, based on this general duty, a police officer speaks pursuant to his official duties
when he speaks about criminal activity of any kind.”). Similarly, that Plaintiff reported the
illegal misconduct to individuals outside his chain of command does not automatically or
necessarily render his speech outside his official duties. See Rohrbough, 596 F.3d at 747; see
also Cheek v. City of Edwardsville, Kansas, 324 F. App’x 699 (10th Cir. 2008) (concluding
plaintiff officer’s speech was pursuant to official duties even though officer reported to outside
agency). The proper focus remains whether the speech involved the type of activities the
employee was paid to do.
In light of the applicable legal standards and the specific facts and circumstances of this
case, the court concludes that Plaintiff Pead’s reporting of what he believed was illegal conduct
was precisely the type of activity he was paid to perform and therefore within his official duties.
Accordingly, Plaintiff’s First Amendment freedom of speech claim pursuant to § 1983 fails as a
matter of law, and Defendants’ motion to dismiss this claim is granted.
2. Utah Whistleblower’s Act Claim
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Second, Plaintiff claims that Defendant Ephraim City violated the Utah Protection of
Public Employees Act, Utah Code Ann. § 67-21-1, et seq. (“the Utah Whistleblower’s Act”).
However, under 28 U.S.C. § 1367(c)(3) a district court may decline to exercise supplemental
jurisdiction over state law claims if the court has dismissed all claims over which it had original
jurisdiction. Having granted Defendants’ motion to dismiss Plaintiff’s federal claim, the court
declines to exercise supplemental jurisdiction over Plaintiff’s state law claim and dismisses the
state-law claim without prejudice. See Board of County Commissioners of Sweetwater County v.
Geringer, 297 F.3d 1108 (10th Cir. 2002) (“The district court’s ruling [in which it declined to
review the state-law claims], comports with our general admonishment that district courts should
dismiss state claims without prejudice after all federal claims have been dismissed, particularly
when the federal claims are dismissed before trial.”).
CONCLUSION
For the reasons stated, the court GRANTS Defendants’ motion to dismiss the federal
cause of action under 42 U.S.C. § 1983, asserting first amendment retaliation, and dismisses the
federal claim with prejudice. The court declines to exercise supplemental jurisdiction over
Plaintiff’s remaining state law claim under the Utah Whistleblower’s Act, and the state law claim
is therefore dismissed without prejudice.
DATED this 12th day of December, 2018.
_________________________________
Dee Benson
United States District Judge
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