Williams v. McKee , 655 F. App'x 677 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS July 20, 2016
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
ROBIN L. WILLIAMS, Personal
Representative of the Estate of
Michael R. Williams,
Plaintiff - Appellant,
v. No. 14-1426
D.C. No. 1:13-CV-02546-PAB-GPG
FRED D. McKEE; DEBBIE (D. Colo.)
GRIFFITH; DELTA COUNTY,
COLORADO,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, MURPHY, and BACHARACH, Circuit
Judges.
I. INTRODUCTION
Michael Williams brought this 42 U.S.C. § 1983 civil rights suit against
“Fred D. McKee,” “Debbie Griffith,” and “Delta County, Colorado.” Fred
McKee is the Delta County Sheriff and Debbie Griffith is the Delta County
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Assessor. Williams alleged (1) Sheriff McKee violated his First and Fourteenth
Amendment rights when he fired him from his position as Detention Officer at the
Delta County Detention Facility; (2) Assessor Griffith violated his Fourteenth
Amendment rights when she fired him from his position as a Delta County
Appraiser; and (3) “Delta County, Colorado” was responsible for Sheriff McKee’s
and Assessor Griffith’s actions because it “provided [them with] no or insufficient
training.” Williams’s complaint also set out an apparent state-law claim for
retaliatory discharge. The district court concluded Williams’s complaint failed to
state a constitutional violation as to either Sheriff McKee or Assessor Griffith.
Accordingly, the district court dismissed Williams’s § 1983 claims against all
three named defendants with prejudice. See Hinton v. City of Elwood, 997 F.2d
774, 782 (10th Cir. 1993) (holding that a governmental entity is not liable under §
1983 when there has been no underlying constitutional violation by an employee).
Having dismissed all of the federal claims on the pleadings, the district court
declined to exercise supplemental jurisdiction over Williams’s state law claim.
Williams appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court
affirms.
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II. BACKGROUND
A. Factual Background 1
In 2010, Williams was hired as a detention officer by the Delta County,
Colorado Sheriff’s Department. Detention officers are sworn deputies of the
Sheriff’s Department. In January 2011, Williams received a favorable written
evaluation, indicating he generally met or exceeded expectations.
Williams had a bumper sticker on his privately owned pickup truck stating:
“Still Voting Democrat? You’re Stuck on Stupid.” He did not use the truck for
work and there was nothing about the truck that made it appear to be a county
vehicle. Williams parked his truck on a street in front of his workplace, the Work
Release Facility of the Delta County Jail.
At the end of June 2011, Williams’s immediate supervisor told Williams
that Sheriff McKee had received a complaint about the bumper sticker.
Specifically, Sheriff McKee was contacted by a citizen complaining that the
bumper sticker was offensive. When asked how he knew the truck belonged to a
1
Because this court is reviewing the district court’s grant of a Fed. R. Civ.
P. 12(b)(6) motion to dismiss, we draw the facts from Williams’s amended
complaint. See Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (holding
that Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners
of the complaint after taking those allegations as true”). Nevertheless, Williams
incorporated by reference in the amended complaint various correspondence and
Delta County personnel policies. Consideration of those documents in the context
of resolving a Rule 12(b)(6) motion to dismiss is appropriate. GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997).
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county employee, the citizen said he knew because the truck was parked in front
of the building where the employees park. The citizen specifically asked Sheriff
McKee if he shared the views expressed in the bumper sticker. A few days later,
Sheriff McKee called Williams and told him a Delta County resident was
offended by the bumper sticker; Sheriff McKee asked Williams to park his truck
around the side or back of the building to hide the bumper sticker.
Thereafter, Williams parked his truck in front of the building, but with blue
tape covering the bumper sticker. One day in August, Williams forgot to put tape
over the bumper sticker. The same concerned citizen called Sheriff McKee to
report that the truck with the bumper sticker was in front of the building again.
Sheriff McKee called Williams and said, “I need you to help me out here and get
it covered.” Williams did so. A week or two later, Williams arrived at work with
the bumper sticker uncovered. Sheriff McKee told Williams to “be sure to get
that tape on there before you leave the house.”
On August 29, 2011, Williams asked Sheriff McKee why he could not park
his private vehicle on a city street. Sheriff McKee raised his voice and said:
“That city street improvement is county property and that is my building, end of
discussion.” This encounter caused Williams significant stress. Williams wrote a
letter to Sheriff McKee requesting a leave of absence. Sheriff McKee found
Williams’s letter to be offensive; other employees of the Sheriff’s Department
agreed with Sheriff McKee’s assessment of Williams’s letter. In particular,
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Undersheriff M.L. Taylor told Sheriff McKee that Williams should be terminated
immediately based on the tone of the letter.
After August 29, 2011, Williams parked his truck, with the bumper sticker
uncovered, on the street near the Work Release Facility. On September 20, 2011,
Sheriff McKee wrote Williams, stating:
In your letter the manner in which you reply to these issues indicates
that you have no intention to comply with [the request to park the
truck on the west side or behind the building]. I find that this level
of insubordination to be intolerable and effective immediately, your
employment with the Delta County Sheriff’s Department Sheriff’s
office is terminated.
Thereafter, Williams filed for state unemployment benefits. The relevant state
entity found that Williams’s behavior was not rude or offensive within the
meaning of Colo. Rev. Stat. § 8-73-108(4), (5)(e)(XIV) and awarded him benefits.
In April 2013, Williams was hired as an entry-level appraiser by the Delta
County Assessor’s Office. Williams learned the technological applications at a
fair pace, requiring decreasing supervision over time, and followed instructions
on prioritizing assignments. In June or July 2013, Williams had a phone
conversation at work about the possibility of filing a lawsuit against Sheriff
McKee. One of his co-workers heard the conversation and asked Williams if he
was suing Sheriff McKee; Williams responded that he was unsure. On September
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18, 2013, Williams filed the instant suit, 2 alleging Sheriff McKee violated his
rights under the First and Fourteenth Amendments by terminating his employment
and Delta County violated the same constitutional rights by failing to sufficiently
train Sheriff McKee. On September 25, 2013, the same co-worker overheard
Williams discussing the lawsuit with his attorney. She asked if Williams was
suing Sheriff McKee; Williams responded in the affirmative. The co-worker
communicated this information to Assessor Griffith that same day. Two hours
later, Assessor Griffith terminated Williams’s employment.
B. Procedural Background
On December 13, 2013, Williams filed an amended complaint. In addition
to the claims for relief set out in the original complaint, the amended complaint
asserted that (1) Griffith violated Williams’s Fourteenth Amendment right to due
process by failing to follow Delta County personnel policies prior to his
termination; (2) Delta County ratified his terminations; and (3) Griffith
discharged Williams in retaliation for filing a lawsuit in violation of Colorado
law.
Sheriff McKee, Assessor Griffith, and Delta County (hereinafter referred to
collectively as “Defendants”) responded to Williams’s amended complaint by
filing a joint motion to dismiss. The Defendants sought dismissal of all claims
2
Williams died on November 16, 2013. His wife, Robin Williams, the
personal representative of his estate, was substituted as plaintiff.
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against Delta County on the ground Williams’s complaint did not comply with the
provisions of Colo. Rev. Stat. § 30-11-105. See Gonzales v. Martinez, 403 F.3d
1179, 1182 n.7 (10th Cir. 2005) (applying of § 30-11-105 to a suit against a
Colorado county brought in federal court). Section 30-11-105 provides: “In all
suits or proceedings by or against a county, the name in which the county shall
sue or be sued shall be, ‘The board of county commissioners of the county of
. . . .’” In contrast to the provisions of § 30-11-105, Williams’s complaint named
“Delta County, Colorado” as the relevant municipal entity. Alternatively, the
Defendants contended that Williams’s suit against Delta County failed as a matter
of law. In that regard, they argued that under Colorado law a county, acting
through its board of commissioners, has no ability to control the employment
decisions of a sheriff or assessor. See Bristol v. Bd. of Cty. Comm’rs, 312 F.3d
1213, 1219 (10th Cir. 2002) (en banc) (discussing, in the context of an ADA suit,
provisions of Colorado’s constitution and statutes that render a sheriff
independent from county commissioners); see also Gonzales, 403 F.3d at 1182
n.7 (discussing same concept in context of suit under 42 U.S.C. § 1983); Colo.
Const. art. XIV, §§ 6, 8 (providing, as is the case with the office of sheriff, that
an assessor is an elected official separate and distinct from the board of county
commissioners); Pritchard v. Bd. of Cty. Comm’rs, 204 P.2d 156, 160 (Colo.
1949) (en banc) (“The right to employ capable assistants comes within the
purview of the duties primarily conferred on the assessor and cannot be claimed
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as an implied power of the board of county commissioners, because by
constitutional and statutory provisions the board of county commissioners, as
such, has no authority to impose itself upon the express powers of another county
officer.”). Because the allegations in Williams’s complaint were limited to a
claim that Delta County was responsible for the allegedly improper terminations
of Williams by Sheriff McKee and Assessor Griffith through the failure to
provide adequate training, and because Delta County had no authority to control
the employment decisions of the sheriff and assessor, the Defendants asserted
Williams’s claim against Delta County failed as a matter of law.
The Defendants asserted that, even assuming Sheriff McKee terminated
Williams for refusing to park his truck away from the front of the Delta County
Detention facility, he did not violate Williams’s First Amendment rights. In so
arguing, they noted this court had held consistent with the First Amendment much
farther reaching restrictions on the speech of law enforcement personnel than are
at issue in this case. See Horstkoetter v. Dep’t of Pub. Safety, 159 F.3d 1265,
1271-75 (10th Cir. 1998). Alternatively, even assuming a First Amendment
violation on the part of Sheriff McKee, the Defendants asserted he was entitled to
qualified immunity because the law was not clearly established. As for
Williams’s due process claim, the Defendants asserted the claim failed because
Williams did not have a property interest in continued employment, Dickeson v.
Quarberg, 844 F.2d 1435 (10th Cir. 1988), and because Williams had not asserted
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facts necessary to support the existence of a liberty interest. They asserted
Williams’s due process claim against Assessor Griffith failed for the same
reasons.
Finally, the Defendants asserted Williams’s claim for retaliatory discharge
was a state-law tort claim that failed as a matter of Colorado law because
Williams did not comply with the notice provisions of the Colorado Governmental
Immunity Act. See Colo. Rev. Stat. §§ 24-10-106(1), -118(2)(a).
In response to the Defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss,
Williams filed a request to file a second amended complaint. The sole change set
out in the proposed second amended complaint was the alteration of the caption to
name the Board of Commissioners of Delta County (rather than Delta County) so
that the complaint was consistent with Colo. Rev. Stat. § 30-11-105.
The district court granted Defendants’ motion to dismiss. Relying on
Horstkoetter, the district court concluded Sheriff McKee’s interest in maintaining
the appearance of political neutrality outweighed Williams’s interest in speech.
The district court concluded Williams’s due process claims against Sheriff McKee
and Assessor Griffith failed because Williams did not have a property interest in
continued employment at either job and because, as a matter of Colorado law,
personnel polices established by the Board of Commissioners of Delta County did
not bind either the Sheriff or the Assessor. Because Williams’s claims against
Sheriff McKee and Assessor Griffith failed as a matter of law, the district court
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denied Williams’s motion to amend as moot. See Hinton, 997 F.2d at 782.
Finally, the district court declined to exercise pendent jurisdiction over
Williams’s state-law claim for retaliatory discharge. See Brooks v. Gaenzle, 614
F.3d 1213, 1229 (10th Cir. 2010) (recognizing that when all federal claims are
dismissed before trial, a district court should generally decline to exercise
pendant jurisdiction over state-law claims).
III. ANALYSIS
A. Motion to Dismiss
1. Standard of Review
This court reviews the district court’s grant of a Fed. R. Civ. P. 12(b)(6)
motion de novo. McDonald v. Wise, 769 F.3d 1202, 1210 (10th Cir. 2014). To
survive a motion to dismiss, a complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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). For that
reason, a plaintiff cannot rely on “labels and conclusions, [or] a formulaic
recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Thus,
this court “disregard[s] conclusory statements and look[s] 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).
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2. First Amendment Claim
On appeal, Williams maintains the amended complaint sets out a valid First
Amendment claim. “When the government is acting as an employer, rather than
as a sovereign, the First Amendment does not apply with full force.”
Horstkoetter, 159 F.3d at 1271. “Although the government, acting as an
employer, cannot condition public employment on a basis that infringes the
employee’s constitutionally protected interest in freedom of expression, a
government employer may impose restraints on the job-related speech of public
employees that would be plainly unconstitutional if applied to the public at
large.” Id. (quotations and citation omitted). To determine whether a public
employer has infringed an employee’s First Amendment rights, this court applies
a four-part test, known as the Pickering/Connick test. Id. A plaintiff must show
(1) he was not speaking pursuant to his official duties; (2) the speech was on a
matter of public concern; (3) the employer’s interest in fostering efficiency in the
workplace did not outweigh the employee’s First Amendment interest; and (4) the
protected conduct motivated the adverse employment action. Morris v. City of
Colo. Springs, 666 F.3d 654, 661 (10th Cir. 2012). In its present posture, this
case turns exclusively on the third element—whether Sheriff McKee’s interest in
efficiency in the workplace outweighed Williams’s First Amendment interest.
That is, for purposes of their motion to dismiss, the Defendants conceded
Williams’s speech was unrelated to his official duties and touched on a matter of
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public concern, but asserted Sheriff McKee’s interest in limiting Williams’s
speech via parking limitations outweighed Williams’s interest in displaying his
bumper sticker while Williams was on duty and his car was parked in front of the
Delta County Detention Facility. This balancing of interests raises a question of
law subject to de novo review. Dill v. City of Edmond, 155 F.3d 1193, 1202 (10th
Cir. 1998).
As this court made clear in Horstkoetter,
[f]or over a century, courts have upheld regulations, such as the
federal Hatch Act, curtailing the rights of public employees to
engage in certain kinds of political speech. These regulations were
enacted to further several legitimate and important interests of
government, including the following: (1) the protection of public
employees’ job security; (2) the eradication of corruption; (3) the
promotion of efficiency in government offices; and (4) the
encouragement of impartiality, and the public perception of
impartiality, in government services.
These permissible restrictions on political speech can also
apply to employees of state and local governments, including law
enforcement officers.
159 F.3d at 1271-72 (citations omitted). At the very least, the third and fourth of
these “important interests of government” are implicated in this case. 3 The
3
See Waters v. Churchill, 511 U.S. 661, 674–75 (1994) (plurality opinion)
(stating “[g]overnment agencies are charged by law with doing particular tasks,”
“[a]gencies hire employees to help do those tasks as effectively and efficiently as
possible,” and “[w]hen [an employee] . . . begins to do or say things that detract
from the agency’s effective operation, the government employer must have some
power to restrain her”); U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers,
413 U.S. 548, 565 (1973) (stating public employees “are expected to enforce the
(continued...)
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amended complaint makes clear a concerned citizen called Sheriff McKee to
complain about the offensive nature of the bumper sticker on several occasions.
The citizen knew the bumper sticker was associated with an employee of the
Sheriff’s Department because it was parked in a location associated with
employees of the detention facility. The citizen told Sheriff McKee “he found it
very disconcerting to be called ‘stupid’ every time he drove by” the detention
facility. 4
3
(...continued)
law . . . without bias or favoritism” and “[a] major thesis” of restrictions on
federal employees engagement in partisan political activity “is that to serve this
great end of Government—the impartial execution of the laws—it is essential that
federal employees” not become involved in politics).
4
The existence of these complaints by a concerned citizen satisfy the
“particularized showing” requirement, assuming it is applicable, discussed in
Horstkoetter. See 159 F.3d at 1273 n.4. In both the appellate briefing and at oral
argument, Williams asserted the district court’s grant of Defendants’ motion to
dismiss was improper because paragraph fifty-two of the amended complaint
asserts as follows: “No conduct of [Williams] adversely affected the morale,
rules, ethics or efficiency of the Delta County Sheriff’s Department . . . or had the
tendency to disrupt confidence in the operation of the services or public respect
for . . . the Delta County Sheriff’s Department . . . .” As the Supreme Court has
made clear, however, although we must accept all the well-pleaded allegations of
the complaint as true and must construe them in the light most favorable to the
plaintiff, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The amended complaint, together with the correspondence between
Sheriff McKee and Williams incorporated therein, make clear that there was, in
fact, disruption of the kind identified in Horstkoetter as inimical to the
government’s interests in workplace efficiency and maintaining the appearance of
impartiality. All that being the case, this court easily concludes that the
conclusory and formulaic allegations set out in paragraph fifty-two of the
amended complaint add nothing meaningful to this court’s analysis of the
(continued...)
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The question then becomes whether Sheriff McKee’s interests, under the
particular set of facts at issue in this case, in maintaining an efficient workplace
and maintaining the appearance of impartiality outweighs Williams’s First
Amendment right to speak. We answer that “case-specific” question in the
affirmative. See Worrell v. Henry, 219 F.3d 1197, 1207 (10th Cir. 2000) (noting
the “case-specific nature” of Pickering balancing); see also Pickering v. Bd. of
Ed. of Twp. High Sch., 391 U.S. 563, 569 (1968) (“Because of the enormous
variety of fact situations in which critical statements by teachers and other public
employees may be thought by their superiors, against whom the statements are
directed to furnish grounds for dismissal, we do not deem it either appropriate or
feasible to attempt to lay down a general standard against which all such
statements may be judged.”).
There is no doubt that Williams’s interest in engaging in political speech is
strong. See Horstkoetter, 159 F.3d at 1273. Nevertheless, it is important to note
that Williams’s bumper sticker went well beyond a law enforcement officer’s
mere expression of political support for, or opposition to, a partisan cause, a type
of expression subject to wide regulation in both the federal and state realms. Id.
at 1271-72. Instead, as is self-evident from the face of the bumper sticker—“Still
Voting Democrat? You’re Stuck on Stupid”—the language could easily spark
4
(...continued)
propriety of the district court’s grant of Defendants’ motion to dismiss.
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conflict with fellow employees or the public. 5 For that reason, Sheriff McKee’s
interest in maintaining the appearance of impartiality and ensuring workplace
efficiency is particularly heightened. Letter Carriers, 413 U.S. at 565 (“[I]t is not
only important that the Government and its employees in fact avoid practicing
political justice, but it is also critical that they appear to the public to be avoiding
it, if confidence in the system of representative Government is not to be
eroded . . . .”). Furthermore, it is important to note the limited nature of Sheriff
McKee’s restriction on Williams’s right to speak. That is, Sheriff McKee did not
order Williams to remove the bumper sticker from his truck or to cover it when
the truck was, at any time, on the road or visible to the public. Instead, Sheriff
McKee directed Williams to not park the truck, with the bumper sticker exposed,
in the area immediately in front of the detention facility, an area at least one
citizen of Delta County knew was associated with Sheriff’s Department
employees who worked at the detention facility.
When all the factual averments set out in the amended complaint are
considered, this court concludes Sheriff McKee’s interests in maintaining the
appearance of impartiality and ensuring workplace efficiency outweigh
5
As Williams’s complaint makes clear, the speech at issue here caused
confrontation and assertions of insubordination not only between Williams and
Sheriff McKee, but also between Williams and others in his line of command.
Thus, as is true for Sheriff McKee’s interest in maintaining an appearance of
impartiality, supra n.4, Sheriff McKee’s interest in maintaining an efficient
workplace is concrete and actual, not theoretical.
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Williams’s interest in engaging in the particular type of speech at issue in this
case. Indeed, it would be quite logically incongruent to conclude Sheriff McKee
violated Williams’s First Amendment rights by imposing the targeted speech
limitation discussed above in response to a citizen’s complaint about particularly
sarcastic partisan speech, when this court’s decision in Horstkoetter allows for the
imposition of significantly more far-reaching restrictions on the partisan political
speech of all law enforcement officers in a given municipality based on the
abstract (but undoubtedly important) interest in preserving the appearance of
political neutrality. 159 F.3d at 1271-72.
To summarize, Williams’s complaint reveals a law enforcement officer
intent on engaging in particularly sarcastic speech—in the form of a bumper
sticker on a truck parked in an area adjacent to the detention facility associated
with employees of the Sheriff’s Department—while on duty. That speech led a
citizen to question Sheriff McKee’s political impartiality. The speech limitation
imposed by Sheriff McKee was narrowly tailored to address the citizen’s concern
by having William’s park his truck behind the detention facility while he was on
duty. There was no limitation on Williams’s ability to display the bumper sticker
at any other time or in any other venue. Williams’s interactions with Sheriff
McKee regarding the speech limitation and Williams’s failure to follow the chain
of command in his efforts to evade or eliminate the limitation caused actual
conflict within the Sheriff’s Department. Given this particular set of facts, this
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court concludes Sheriff McKee’s interests in maintaining the appearance of
impartiality promoting workplace efficiency outweighed Williams’s interest in
displaying the bumper sticker. See Worrell, 219 F.3d at 1207 (noting the “case-
specific nature” of Pickering balancing). Thus, the order of the district court
granting Defendants’ Rule 12(b)(6) motion as to Williams’s First Amendment
claim is affirmed. 6
6
None of the cases cited by Williams on appeal address an even remotely
similar factual milieu to the one presented in this case and are, therefore, not
particularly helpful. For that reason, there is no need to document our analysis of
those authorities. For that same reason, even if this court were to conclude
Williams’s complaint stated a First Amendment violation, we would still affirm
the district court’s entry of judgment in the Defendants’ favor on the basis of
qualified immunity. See Worrell v. Henry, 219 F.3d 1197, 1215 (10th Cir. 2000)
(noting that this court can reach the issue of qualified immunity on appeal if it
was raised and briefed before the district court); Lybrook v. Members of
Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1337 (10th Cir. 2000)
(“When qualified immunity is raised in a Fed. R. Civ. P. 12(b)(6) motion, the
plaintiff must carry the burden of establishing that the defendant violated clearly
established law. Thus, the plaintiff must identify a clearly established statutory
or constitutional right of which a reasonable person would have known, and then
allege facts to show that the defendant’s conduct violated that right.” (citation and
quotation omitted)).
The doctrine of qualified immunity shields officials from civil liability so
long as their conduct “does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Mullenix
v. Luna, 136 S. Ct. 305, 308 (2015) (quotations omitted). “A clearly established
right is one that is sufficiently clear that every reasonable official would have
understood that what he is doing violates that right.” Id. (quotation omitted).
Although a case directly on point is not required, “existing precedent must have
placed the statutory or constitutional question beyond debate.” Id. (quotation
omitted). “Put simply, qualified immunity protects all but the plainly
incompetent or those who knowingly violate the law.” Id. (quotation omitted).
(continued...)
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3. Due Process Claims
Pursuant to the Fourteenth Amendment’s Due Process Clause, a state may
not deprive an individual of liberty or property without due process of law. U.S.
Const. amend. XIV, § 1. Williams had a protected property interest in his
government jobs only if he had a “legitimate claim of entitlement to” the jobs
grounded in an “independent source such as state law.” Bd. of Regents v. Roth,
408 U.S. 564, 577 (1972). State law may take the form of “state statutes, local
ordinances, established rules, or mutually explicit understandings.” Farthing v.
City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994) (quotation omitted).
Under Colorado law, an employee is presumed to be employed at-will and
can be terminated “without cause or notice” without giving rise to a cause of
action. Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708, 711 (Colo. 1987) (en
banc). Local government employees are no different. That is, they “hold their
posts at the pleasure of the proper local government authorities and can be
dismissed without cause, in the absence of restrictions or limitations provided by
law.” Fremont RE–1 Sch. Dist. v. Jacobs, 737 P.2d 816, 820 (Colo. 1987) (en
banc) (quotation omitted). This rule does not apply, however when the employee
6
(...continued)
As this court’s above discussion demonstrates, it is impossible to conclude the
existing case law indisputably mandates a ruling in Williams’s favor. That being
the case, even if he were not entitled to prevail on the merits, Sheriff McKee
would be entitled to judgment on the basis of qualified immunity.
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has “tenure, a contract for a fixed term, an implied promise of continued
employment, or if state law allows dismissal only for cause or its equivalent.”
Darr v. Town of Telluride, 495 F.3d 1243, 1251 (10th Cir. 2007). A sheriff in
Colorado “may appoint as many deputies as the sheriff may think proper and may
revoke such appointments at will.” Colo. Rev. Stat. § 30-10-506.
Williams’s complaint alleges as follows:
Under §§ 9.4 and 9.6 of the Delta County Personnel Policies, an
employee is required to be given 10 working days’ notice prior to the
effective date of his termination unless the Department Head or
Elected official agrees to permit a shorter period of notice due to
extenuating circumstances. . . . [U]nder §8.3 of the Delta County
Personnel Policies, so long as the County will not be placed at risk,
an employee facing possible discipline is to be provided reasonable
written notice of such discipline (usually three (3) working days.).
Relying on these provisions, Williams’s complaint asserts Sheriff McKee and
Assessor Griffiths violated his due process rights by denying him “notice of right
to appeal,” “an opportunity to challenge his termination by responding in writing
at a hearing,” an “opportunity to present evidence,” and an opportunity to “seek a
hearing.”
Williams’s assertion that the Delta County Personnel Policies grant him a
property interest in his position in the Sheriff’s department is at odds with this
court’s precedents. As we made clear in Bristol:
Under the Colorado constitution, the County Sheriff is a
distinct position, separate from the Board of County Commissioners.
See Colo. Const. art. XIV, § 6 (election of County Commissioners);
§ 8 (election of Sheriffs and other county officers). Sheriffs have
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exclusive control over the hiring and firing of their employees, Colo.
Rev. Stat. § 30–10–506, and even self-imposed limitations on their
right to discharge employees at will are invalid, Seeley v. Bd. of
County Comm’rs, 791 P.2d 696, 700 (Colo.1990) (en banc). Most
important to control over the terms and conditions of an employment
relationship is the right to terminate it under certain circumstances—
a power exclusively vested in the Colorado Sheriffs with respect to
their deputies. Colo. Rev. Stat. § 30–10–506; Seeley, 791 P.2d at
699.
312 F.3d at 1219. The same rule is true of the County Assessor. Like the Sheriff,
the Assessor is an elected official separate and distinct from the Board of County
Commissioners. See Colo. Const. art. XIV, § 6 (election of County
Commissioners); § 8 (election of Assessors and other county officers).
Furthermore, “[t]he right to employ capable assistants comes within the purview
of the duties primarily conferred on the assessor and cannot be claimed as an
implied power of the board of county commissioners, because by constitutional
and statutory provisions the board of county commissioners, as such, has no
authority to impose itself upon the express powers of another county officer.”
Pritchard v. Bd. of Cty. Comm’rs, 204 P.2d 156, 160 (Colo. 1949) (en banc).
Because the county policies upon which Williams relies do not apply to
employment decisions undertaken by Sheriff McKee and Assessor Griffith, they
do not create a property interest and Williams’s due process claims necessarily
fail.
Williams seems to recognize as much in the briefing on appeal. See
Appellant’s Opening Br. at 60 (“[Colorado] law may allow [a] sheriff to revoke
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appointments at will. The personnel manual may not have given [Williams] a
legitimate claim of entitlement in continued employment.” (record citation
omitted)). Nevertheless, Williams maintains the complaint states a valid due
process claim, asserting for the first time that the terminations deprived Williams
of a liberty interest, thereby entitling him to a name-clearing hearing. There are
two problems with Williams’s assertion in this regard. First, this court generally
does not consider arguments raised for the first time on appeal. Martinez v. Angel
Expl., LLC, 798 F.3d 968, 974 (10th Cir. 2015). Williams has proffered to this
court no reason to deviate from this general rule. Second, even if this court
overlooked the waiver, there are simply no facts in the amended complaint to
support the assertion that either termination implicated a liberty interest. See
Evers v. Regents of Univ. Of Colo., 509 F.3d 1304, 1308 (10th Cir. 2007) (holding
that to establish a liberty interest claim in this context a plaintiff must
demonstrate the following: “First . . . the statements must impugn the good name,
reputation, honor, or integrity of the employee. Second, the statements must be
false. Third, the statements must occur in the course of terminating the employee
or must foreclose other employment opportunities. And fourth, the statements
must be published. These elements are not disjunctive, all must be satisfied to
demonstrate deprivation of the liberty interest.” (quotation omitted)).
Because the personnel policies upon which Williams relies do not create a
property interest, and because any claim as to the implication of a liberty interest
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is both waived and not supported by the allegations in the amended complaint, the
district court correctly granted the Defendants’ Rule 12(b)(6) motion to dismiss
Williams’s due process claims.
B. Remaining Matters
1. Motion to Amend
As set out above, the district court correctly concluded Williams’s
complaint failed “to state a claim upon which relief can be granted” as to all
claims premised on § 1983. Fed. R. Civ. P. 12(b)(6). Because a governmental
entity may not be held responsible under § 1983 where there has been no
underlying constitutional violation, Hinton, 997 F.2d at 782, the district court
correctly denied as moot Williams’s motion to file a second amended complaint,
the sole purpose of which proposed amendment was to properly name the Board
of Commissioners of Delta County as the municipal entity defendant.
2. Discovery Sanction
The district court entered a scheduling order on February 3, 2014; the order
specified that Fed. R. Civ. P. 34 requests for production were limited to twenty-
five per side. On February 11, 2014, Williams submitted twenty-five requests for
production. Defendants responded to Williams’s requests. Despite having
already served the maximum number of requests allowed in the scheduling order,
Williams submitted a second request for production on March 31, 2014; this
request contained thirteen categories. Defendants objected to Williams’s requests
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as in excess of the discovery limits ordered by the district court. Defendants
further noted that Williams had submitted some duplicate requests, but indicated
they would consider voluntarily answering requests in excess of the court
mandated limits if Williams would reduce and more narrowly tailor the requests.
Williams submitted a third request for production dated April 8, 2014; this
request contained twenty-two categories. Defendants again objected, noting the
requests exceeded the court-ordered discovery limits. Williams submitted a
fourth request, covering an additional eighteen categories, on April 28, 2014.
Including these last eighteen, Williams’s requests under Rule 34 totaled seventy-
eight.
Defendants filed a motion for a protective order. In response, Williams
filed a belated motion to increase the discovery limits. The district court granted
Defendant’s motion for a protective order, ruling as follows:
. . . . [Williams] did not seek or obtain leave of Court to
submit requests for production of documents beyond the 25 requests
approved by the Court.
As to each of [Williams’s] second, third and fourth requests
for production and/or inspection, Defendants’ counsel communicated
through written letters to [Williams’s] counsel that the requests
exceeded the limits set forth by the Court’s Orders, and attempted to
cooperate and reach a compromise with [Williams] by narrowing the
scope of the questions and/or removing duplicate requests.
Defendants’ counsel also spoke by telephone with [Williams’s]
counsel. [Williams’s] counsel was advised that Defendants would
seek the Court’s protection if leave to exceed the limits was not
obtained or a compromise could not be reached. Instead of seeking
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leave or reaching a compromise, [Williams] continued to submit
additional requests for production of documents to Defendants.
The number of requests submitted by [Williams] exceeds the
authorized amount by more than three times (78 total) the amount
authorized. The Court finds that the excessive amount of requests
over the authorized limits was posed for the purpose of annoyance,
oppression or undue burden or expense. The Court further finds that
Defendants have demonstrated good cause for issuance of a
protective order and the appropriate remedy is to forbid the
discovery.
THE COURT HEREBY ORDERS THAT, for the foregoing
reasons, Defendants’ Motion for Protective Order is granted.
[Williams] is forbidden from submitting more than 25 requests for
production of documents to Defendants. [Williams] reached that
limit in the request for production of documents submitted to
Defendants dated February 11, 2014.
THE COURT FURTHER ORDERS THAT, Defendants are
hereby awarded their expenses, including attorney’s fees, incurred by
Defendants in responding to [Williams’s] excessive requests and this
Motion.
Williams seeks to appeal the district court’s entry of a protective order,
denial of the motion for additional discovery, and imposition of attorney’s fees.
Nevertheless, the entirety of Williams’s merits briefing of the issue is as follows:
Parties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense – including the
existence, description, nature, custody, condition, and location of any
documents or other tangible things. For good cause, the court may
order discovery of any matter relevant to the subject matter involved
in the action. Relevant information need not be admissible at the
trial if the discovery appears reasonabl[y] calculated to lead to the
discovery of admissible evidence. Rule 26 (b) (1), F.R.C.P.
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Appellant’s Opening Br. at 65-66. Williams’s complete failure to grapple with
the substance of the district court order results in a waiver. Rule 28(a)(9)(A) of
the Federal Rules of Appellate Procedure requires the argument section of an
appellant’s brief to contain “appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on which the appellant
relies.” MacArthur v. San Juan Cty., 495 F.3d 1157, 1160 (10th Cir. 2007)
(quotation omitted). “[W]e routinely have declined to consider arguments that are
not raised, or are inadequately presented, in an appellant’s opening brief.”
Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007). That Williams makes
an effort, though still insufficient to comply with the dictates of Rule 28(a)(9)(A),
to brief the issue in the reply brief does not alter the result. See Reedy v.
Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011) (“The general rule in this circuit
is that a party waives issues and arguments raised for the first time in a reply
brief.” (brackets and quotation omitted)). 7
7
Even if this court overlooked Williams’s failure to adequately brief this
issue, we would affirm the district court. The record demonstrates no explanation
on the part of Williams for the failure to seek leave of the court before filing
multiple production requests in clear excess of the limits set out in the scheduling
order. Furthermore, the record demonstrates that many of Williams’s requests for
production were duplicative of earlier requests to which the Defendants had
already responded. Finally, the record demonstrates the Defendants proactively
attempted to reach a compromise on the requests for additional production, but
that Williams was not willing to reach such a compromise. All this being the
case, this court certainly cannot conclude the district court’s denial of Williams’s
belated motion for additional requests for production and its imposition of
(continued...)
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3. Treatment of State-Law Retaliatory Discharge Claim
Williams’s amended complaint asserts a claim against Assessor Griffith for
retaliatory discharge. The district court concluded the claim arose under
Colorado state law, and declined to exercise pendant jurisdiction over the claim
after dismissing all federal claims on the merits pre-trial. Although Williams’s
brief is less than clear, it is possible to read the brief as challenging the district
court’s decision in that regard. That is, Williams’s brief argues the amended
complaint set out a valid, meritorious claim for retaliatory discharge. See
Appellant’s Opening Br. at 61 (citing Maxfield v. Bressler, 20 F. Supp. 3d 1084,
1092-1094 (D. Colo. 2013) for the proposition that the amended complaint
“successfully stated a claim for wrongful discharge in violation of public
policy”). 8 To the extent Williams’s brief can be read to suggest the district court
erred when it declined to reach the merits of the state-law claim, that assertion is
7
(...continued)
sanctions was manifestly unreasonable. Coletti v. Cudd Pressure Control, 165
F.3d 767, 777 (10th Cir. 1999) (“As a general rule, the imposition of sanctions for
abuse of discovery . . . is a matter within the discretion of the trial court. A
district court abuses its discretion when it renders an arbitrary, capricious,
whimsical, or manifestly unreasonable [judgment].” (quotations and alteration
omitted)); Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 986
(10th Cir. 2000) (“We review a district court’s denial of a motion for further
discovery for abuse of discretion.”).
8
To be clear, the entire discussion in Maxfield v. Bressler referenced by
Williams discusses the contours and elements of a Colorado state-law claim for
wrongful discharge in violation of public policy. 20 F. Supp. 3d 1084, 1092-94
(D. Colo. 2013).
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frivolous. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)
(“Needless decisions of state law should be avoided both as a matter of comity
and to promote justice between the parties, by procuring for them a surer-footed
reading of applicable law. Certainly, if the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well.” (footnote omitted)).
Alternatively, it is possible to read Williams’s brief to stand for the
proposition that the retaliatory discharge claim set out in the amended complaint
does not arise under Colorado state law but, instead, under federal law. That is,
Williams’s brief suggests the retaliatory discharge claim arises under the anti-
retaliation provisions of Title VII. See Appellant’s Opening Br. at 65 (“It is an
unlawful practice for an employer to discriminate against any of its employees
because he has opposed any practice made unlawful by this [title] or has made a
charge. 42 U.S.C. §2000e-3(a).”). Even if this court assumes at least some
aspect of Williams’s retaliatory discharge claim arises under Title VII and the
district court erred in failing to discuss that claim before dismissing all federal
claims on the merits, any such error is harmless because that claim is patently
frivolous.
Section 2000e-3(a) provides that “[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his employees . . . because
he has opposed any practice made an unlawful employment practice by this title.”
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Contrary to Williams’s implicit assertion, section 2000e-3(a) is not some type of
super statute that prohibits each and every kind of potential retaliation on the part
of an employer. Instead, Title VII, inter alia, makes it an improper employment
practice to condition employment on an “individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a); see also Petersen v. Utah Dep’t of
Corr., 301 F.3d 1182, 1188 (10th Cir. 2002) (“Opposition to an employer’s
conduct is protected by § 2000e–3(a) only if it is opposition to a practice made an
unlawful employment practice by [Title VII]. Title VII does not prohibit all
distasteful practices by employers.” (quotation omitted)). Because there is no
hint of an allegation in Williams’s complaint that either Sheriff McKee’s or
Assessor Griffith’s actions were in retaliation for any matter falling within the
purview of Title VII, any claim in Williams’s complaint based on § 2000e-3(a)
fails as a matter of law.
IV. CONCLUSION
For those reasons set out above, the relevant orders of the United States
District Court for the District of Colorado are hereby AFFIRMED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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Williams v. McKee, Case No. 14-1426
BACHARACH, J., concurring.
I join virtually all of the panel’s well-written, well-analyzed order
and judgment. Unlike my esteemed colleagues, however, I would not reach
the issue of qualified immunity. Thus, I do not join footnote 6 of the order
and judgment.
In that footnote, the majority concludes that the plaintiff failed to
satisfy the second prong of qualified immunity. In my view, however,
Sheriff McKee did not argue in district court that the plaintiff had failed to
satisfy this prong of qualified immunity. 1 Instead, Sheriff McKee argued
only the first prong.
This approach would not necessarily preclude Sheriff McKee from
seeking affirmance based on the second prong. Cox v. Glanz, 800 F.3d
1231, 1244-46 & n.7 (10th Cir. 2015). But Sheriff McKee has not raised
qualified immunity in our court.
As a result, no one in district court or our court has ever briefed an
issue involving the second prong of qualified immunity. And there is no
need for us to raise an issue on the second prong of qualified immunity
because the underlying claim otherwise fails as a matter of law. In these
1
The majority states that “the Defendants asserted [Sheriff McKee]
was entitled to qualified immunity because the law was not clearly
established.” Maj. Op. at 8. I respectfully disagree with this
characterization.
circumstances, I would decline to reach the second prong of qualified
immunity.
2