United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
CHRISTINA ARMIJO, SENIOR UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Defendants'
Motion for Summary Judgment and Motion to Dismiss
[Doc. 58]. The Court has considered the parties'
submissions and the relevant law, and is otherwise fully
informed. For the following reasons, the Court GRANTS
in PART and DENIES in PART Defendants'
began working for the Bernalillo County Sheriffs Office
(BCSO) in 2000 as a cadet. He was promoted to Sergeant in
2013. [Defs' Statement of Material Facts (SMF) ¶ 1;
Pltf's Response, ¶ 1] In December 2012, Plaintiffs
obtained a position through which he worked for the Village
of Los Ranchos in addition to BCSO. [Defs' SMF ¶ 2;
Pltf's' Response, ¶ 2] From December 2013
through February 2014, Plaintiff submitted overtime requests
in advance to Chief Deputy Katz for his approval. [Defs'
SMF, ¶ 3; Pltf's Response, ¶ 3] Plaintiff
asserts, and Defendants do not dispute, that after Chief
Deputy Katz retired, Plaintiff submitted his timesheets to
Wendy Jiacoletti, who said she would obtain approval
signatures. [Pltf's Response, ¶ 3]
Campaign Contributions and the 2014 Election
was an election year for the position of Sheriff of
Bernalillo County. [Defs SMF, ¶ 5; Pltf's Response,
¶ 5] Plaintiff was a supporter of then incumbent Sheriff
Dan Houston: he worked on Houston's campaign putting up
signs and donated $250 to Houston's campaign. [Depo of M.
McCoy, p.63, 1.6 through p.64, 1.18; Defs' SMF, ¶ 6;
Pltf's Response, ¶ 6] Following Houston's loss
in the primary election in June of 2014, Plaintiff became a
supporter of candidate Scott Baird but did not actively work
on his campaign. He donated $100 in the form of an
advertisement. [Depo of M. McCoy, Doc. 59-1, 64:1-25 to
66:1-3; Defs' SMF, ¶ 7; Pltf's Response, ¶
7] The donation was reported in a Campaign Finance Report on
the New Mexico Secretary of State's website on October
14, 2014. [Pltf's Response, ¶ 12; Defs' Reply,
Baird was defeated by Defendant Manuel Gonzales, III.
[Defs' SMF ¶ 21; Pltf's Response, ¶ 21]
Defendant Mora became Undersheriff after Defendant Gonzales
took office in January 2015. [Defs' SMF, ¶21;
Pltf's Response, ¶ 21]
Incidents Leading to an Internal Affairs Investigation of
August 2014, Plaintiff was working security for an event at
the Journal Pavilion. [Defs' SMF, ¶ 9; Pltf's
Response, ¶ 9] He was driving an unmarked "black
Charger." [Id.] On the way home, BCSO deputies
saw the vehicle and followed him. When Plaintiff learned
through a call from another officer that he was being
pursued, he turned on the emergency lights and pulled over.
[Id.] The two officers drove by and did not make
contact with him. [Id.] Later that evening, the BCSO
officers went to Plaintiffs' house, but Plaintiff
declined to speak with them and instead wanted to speak to
the Lieutenant or Sergeant on duty. [Id.] He
eventually spoke to the acting Sergeant on duty, Sergeant
Primazon. The deputies reported during the IA
investigation that they had observed the black Charger going
over 100 MPH and nearly hitting a curb. [Defs' Exh B;
Defs' SMF, ¶ 9] Plaintiff disputes that he was
speeding or driving erratically. [Pltf's Response, ¶
Houston was informed of the August, 2014 incident two months
later on October 31, 2014 (i.e., seventeen days after the
Campaign Finance Report reflecting Plaintiffs donation to
Scott Baird was made public). [Defs' SMF, ¶ 10;
Pltf's Response, ¶ 10] In the course of considering
the August incident, Defendant Houston inquired into
Plaintiffs supervisors and time cards. [Defs' SMF, ¶
12; Pltf's Response, ¶ 12 (not disputing this fact)]
In so doing, Houston discovered that the signatures on some
of Plaintiffs time cards were not authentic. [Defs' SMF,
¶ 13-14; Pltf's Response, ¶ 13-14] Defendant
Houston ordered an IA investigation into both the August
incident and "questionable time card submissions by
[P]laintiff." [Defs' SMF, ¶ 15; Pltf's
The Internal Affairs Investigation, Criminal
Investigation, and Submission of the LEA 90
Golden issued a "target letter" to Plaintiff the
same day the IA investigation was ordered by Defendant
Houston (October 31, 2014) and began investigating the
allegations. [Defs' SMF, ¶ 16; Pltf's Response,
¶ 16] In April 2015, the BCSO White Collar Crimes Unit
also opened an investigation. [Defs' SMF, ¶ 17;
Pltf's Response, ¶ 17] In February, 2016, Defendant
Mora submitted an "LEA 90," a form used to report
alleged misconduct, was submitted to the Law Enforcement
Academy. [Defs' SMF, ¶ 18; Doc. 59-6, Mora Depo,
55:20-56:21; Doc. 62-3, 55:2 - 556:1]
Investigations of Other Officers
the parties do not dispute that some BCSO supervisors were
investigated for allegations of time card fraud in 2010, that
both IA and criminal investigations were conducted, and that
the criminal investigation was referred to the District
Attorney. [Defs' SMF, ¶¶11; Pltf's
Response, ¶¶ 11] In addition, they do not dispute
that another deputy was investigated in 2016 for being
untruthful with regard to time reporting, among other things.
Both IA and criminal investigations were conducted.
[Defs' SMF, ¶ 25; Pltf's Response, ¶ 25]
The criminal investigation was referred to the District
Attorney for review, and an LEA 90 was submitted.
facts are included in the Court's discussion of the
Summary Judgment and 12(b)(6) Standards
move for summary judgment on some claims and request
dismissal of other claims for failure to state a claim under
Rule 12(b)(6). Summary judgment is appropriate "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). Under this Rule,
"the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
supported motion for summary judgment." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Rather, "[o]nly disputes over facts that might affect
the outcome of the suit under the governing law will properly
preclude the entry of summary judgment." Id. at
248. Generally, the moving party bears the burden of
demonstrating the absence of a genuine issue of material
fact. See Shapolia v. Los Alamos Nat'l
Lab., 992 F.2d 1033, 1036 (10th Cir. 1993) (citations
omitted). The moving party need not negate the
nonmovant's claim, but rather must show "that there
is an absence of evidence to support the nonmoving
party's case." Celotex v. Catrett, 477 U.S.
317, 325 (1986). Once the moving party meets its initial
burden, the nonmoving party must show that genuine issues
remain for trial "as to those dispositive matters for
which it carries the burden of proof." Applied
Genetics Int'l Inc. v. First Affiliated Sees.,
Inc., 912 F.2d 1238, 1241 (10th Cir. 1990) (citation
omitted). The nonmoving party cannot rely upon conclusory
allegations or contentions of counsel to defeat summary
judgment, see Pueblo Neighborhood Health Ctrs., Inc. v.
Losavio, 847 F.2d 642, 649 (10th Cir. 1988), but rather
must "go beyond the pleadings and by [its] own
affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial."
Celotex, 477 U.S. at 324 (internal quotation marks
and citation omitted). If the responding party fails to
properly address the movant's assertion of fact as
required by Rule 56(c), a district court may "grant
summary judgment if the motion and supporting
materials-including the facts considered undisputed-show that
the movant is entitled to it." Fed.R.Civ.P. 56(e)(3).
Upon a motion for summary judgment, a district court
"must view the facts in the light most favorable to the
nonmovant and allow the nonmovant the benefit of all
reasonable inferences to be drawn from the evidence."
Kaus v. Standard Ins. Co., 985 F.Supp. 1277, 1281
Court's review under Fed.R.Civ.P. 12(b)(6) focuses on the
sufficiency of the complaint. Federal Rule of Civil Procedure
8(a)(2) requires a complaint to set out "a short and
plain statement of the claim showing that the pleader is
entitled to relief." In Bell Atlantic Corporation v.
Twombly, 550 U.S. 544 (2007), the Supreme Court held
that "to withstand a motion to dismiss, a complaint must
have enough allegations of fact, taken as true, 'to state
a claim to relief that is plausible on its face."'
Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210,
1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at
570). In applying this test, a court accepts as true all
"plausible, non-conclusory, and non-speculative"
facts alleged in the plaintiffs complaint, Shrader v.
Biddinger, 633 F.3d 1235, 1242 (10th Cir. 2011), but
does not accept as true any legal conclusions. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating
that "the tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to
legal conclusions"). In short, in ruling on a Rule
12(b)(6) motion, "a court should disregard all
conclusory statements of law and consider whether the
remaining specific factual allegations, if assumed to be
true, plausibly suggest the defendant is liable."
Collins, 656 F.3d at 1214.
Count I, Plaintiff alleges "42 U.S.C. § 1983
Constitutional Deprivations Under the First and Fourteenth
Amendments against Defendants Houston, Gonzales, Mora, and
Golden for Retaliation for Lawful Speech and Political
Activity." [Complaint, pg. 9] Defendants argue that they
are entitled to summary judgment 1) to the extent the claim
is improperly based on the Fourteenth Amendment; 2) because
Plaintiff cannot show that his political speech was a
substantial factor in their decision to take adverse
employment actions against him; and 3) because they are
entitled to qualified immunity. [Doc. 59] The Court will
address these arguments in turn.
Whether Freedom of Speech Claims Must be Analyzed under the
First, not Fourteenth, Amendment
move to dismiss Count I as a matter of law to the extent it
is based on violation of the Fourteenth Amendment. [Doc. 59,
pg. 9] See Fed. R. Civ. P. 12(b)(6) (stating that
"a party may assert the . . . defense[ of] . . . failure
to state a claim upon which relief can be granted").
Plaintiff did not respond to this argument in his
Response. [Doc. 62] Neither does Plaintiff explain
in the Complaint how the Fourteenth Amendment
provides a cause of action for retaliation based on protected
speech that is independent of the First Amendment. See
Albright v. Oliver, 510 U.S. 266, 271 (1994) (stating
that "[t]he first step in any [§ 1983] claim is to
identify the specific constitutional right allegedly
Court agrees with Defendants that, to the extent that
Plaintiff asserts a claim under the Fourteenth Amendment
based on retaliation for his political activity, that claim
is coextensive with his First Amendment claim and, therefore,
must be dismissed. See Robertson v. Dean Witter
Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984)
("A complaint may be dismissed as a matter of law for
one of two reasons: (1) lack of a cognizable legal theory or
(2) insufficient facts under a cognizable legal
claim."). Under Albright, "[w]here a
particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of
government behavior, that Amendment, not the more generalized
notion of 'substantive due process,' must be the
guide for analyzing these claims." Albright,
510 U.S. at 273 (internal quotation marks and citation
omitted); see Nestor Colon Medina & Sucesores, Inc.
v. Custodio, 964 F.2d 32, 46 (1st Cir. 1992) (stating
that "[t]o the extent [a] substantive due process claim
is based on the alleged retaliation for [the plaintiffs]
political views, it is coextensive with his First Amendment
claim"). Any claim based on the Fourteenth Amendment
will be dismissed.
The First Amendment Claim and the Garcetti/Pickering
next argue that Count I must be dismissed because Plaintiffs
protected speech was not a substantial factor in any adverse
action against him, or, if it was, Defendants would have
taken those actions even in the absence of such speech. [Doc.
59, pg. 9-15] Analysis of First Amendment claims by public
employees invokes five steps known as "the
Brammer-Hoelter v. Twin Peaks Charter
Acad., 492 F.3d 1192, 1202 (10th Cir. 2007). Those are:
First, the court must determine whether the employee speaks
pursuant to his official duties. If the employee speaks
pursuant to his official duties, then there is no
constitutional protection because the restriction on speech
simply reflects the exercise of employer control over what
the employer itself has commissioned or created.
Second, if an employee does not speak pursuant to his
official duties, but instead speaks as a citizen, the court
must determine whether the subject of the speech is a matter
of public concern. If the speech is not a matter of public
concern, then the speech is unprotected and the inquiry ends.
Third, if the employee speaks as a citizen on a matter of
public concern, the court must determine whether the
employee's interest in commenting on the issue outweighs
the interest of the state as employer.
Fourth, assuming the employee's interest outweighs that
of the employer, the employee must show that his speech was a
substantial factor or a motivating factor in a detrimental
Finally, if the employee establishes that his speech was such
a factor, the employer may demonstrate that it would have
taken the same action against the employee even in the
absence of the protected speech.
Id. at 1202-03 (internal quotation marks and
citations omitted; spacing added for clarity); see
Maestas v. Segura, 416 F.3d 1182, 1188 (10th Cir. 2005)
(setting out the test and stating that "[t]he employee
also bears the burden under the [fourth] factor of
establishing an adverse employment action."). "The
first three steps are to be resolved by the district court,
while the last two are ordinarily for the trier of
fact." Brammer, 492 F.3d at 1202-03.
purposes of the present Motion, Defendants do not
argue that Plaintiffs political speech was part of his
employment, and do not dispute that the political activity in
question was a matter of public concern or that Plaintiffs
interest in engaging in such activity outweighed
Defendants' interest in "an efficient and effective
workplace." [Doc. 59, pg. 10] Instead they argue that
Plaintiff cannot demonstrate that Plaintiffs political
activity was a substantial factor in the Defendants'
employment actions (Factor Four). [Id.] Defendants
also assert that they have shown that they would have taken
the same actions even in the absence of Plaintiffs political
activity (Factor Five). [Doc. 59, pg. 14-15]
Court finds that the first three Garcetti/Pickering
factors are clearly met. Plaintiff made a donation to the
Baird campaign as a private citizen. See Chavez-Rodriguez
v. City of Santa Fe, 596 F.3d 708, 713 (10th Cir. 2010)
(stating that "[t]he guiding principle [as to this
factor] is that speech is made pursuant to official duties if
it involves the type of activities that [the employee] was
paid to do." (internal quotation marks and citation
omitted)). In addition, "[c]ourts have held that
political speech regarding a public election is undoubtedly a
matter of public concern." Brammer-Hoelter, 492
F.3d at 1205. Finally, Plaintiffs interest in speaking on
political candidates outweighs the BCSO's interest.
"The citizenry's ability to make known their
assessment of a candidate's qualifications for public
office is 'integral to the operation of the system of
government established by our Constitution.'"
Bass v. Richards, 308 F.3d 1081, 1089 (10th Cir.
2002) (quoting Buckley v. Valeo, 424 U.S. 1, 14
(1976) (per curiam)). "Accordingly, the First Amendment
affords the broadest protection to such political
expression." Id. (internal quotation marks and
citation omitted). Moreover, "the employer
bears the burden of justifying its regulation of the
employee's speech" and, since Defendants here make
no argument regarding their interest as employers, the Court
"must assume that Plaintiffs' interests in speaking
on the four remaining matters outweighed Defendants'
interests in managing the work environment."
Brammer-Hoelter, 492 F.3d at 1207.
the fourth Garcetti/Pickering factor, "the
employee must show that his speech was a substantial factor
or a motivating factor in a detrimental employment
decision." Brammer-Hoelter, 492 F.3d at 1202.
Hence, the first step is to determine whether Plaintiff has
alleged a "detrimental employment decision" by
short of an actual or constructive employment decision can in
certain circumstances violate the First Amendment."
Morfin v. Albuquerque Pub. Sch., 906 F.2d 1434, 1437
n.3 (10th Cir. 1990) (stating that the Tenth Circuit has
rejected the position that "only adverse employment
decisions, such as termination, suspension, or transfer, in
retaliation for constitutionally protected conduct are
illegal"). However, "employers may have a
justifiable right to investigate allegations of misconduct,
and such investigations do not automatically constitute
detrimental employment decisions." Miller v.
Kennard, 74 F.Supp.2d 1050, 1060-61 (D. Utah 1999).
Here, Plaintiff argues that initiation of the IA
investigation was itself baseless, and, more significantly,
led to both an unfounded criminal investigation that was
referred to the District Attorney's office and could have
resulted in criminal charges, as well as an unfounded report
to the Law Enforcement Academy Board, which could have ended
in revocation of his certification. Viewed in the light most
favorable to Plaintiff, the Court concludes that a
fact-finder could find the IA investigation, initiation of a
criminal investigation, and report to the LEA to be
detrimental employment decisions. Cf. Bass, 308 F.3d
at 1088 (stating that "the government infringes upon
protected activity whenever it punishes or threatens to
punish protected speech"); Miller, 74 F.Supp.2d
at 1060 (stating that, where the plaintiff "offered
evidence suggesting that [the] investigation of him was
excessive, unusual, disproportionate to the allegations, and
conducted in violation of Sheriffs Office policies," the
investigation could be a detrimental employment decision).
the Court examines whether Plaintiff can make a causal
connection between his speech and Defendants' actions.
Defendants argue that Plaintiff cannot show that his support
of Baird was a substantial factor in initiation of the IA
investigation, initiation of the criminal investigation, or
submission of the LEA 90. [Doc. 59] "Adverse action in
close [temporal] proximity to protected speech may warrant an
inference of retaliatory motive." Maestas, 416
F.3d at 1189. While "temporal proximity is insufficient,
without more, to establish such speech as a substantial
motivating factor in an adverse employment decision, . . .
[a]n employer's knowledge of the protected speech,
together with close temporal proximity between the
speech and challenged action may be sufficiently probative of
causation to withstand summary judgment." Id.
(citations omitted). In addition, "[o]ther evidence of
causation may include evidence the employer expressed
opposition to the employee's speech or evidence the
speech implicated the employer in serious misconduct or
wrongdoing." Id. (citations omitted). "On
the other hand, evidence such as a long delay between the
employee's speech and challenged conduct, or evidence of
intervening events, tend to undermine any inference of
retaliatory motive and weaken the causal link."
Id. (citations omitted). These principles rest on a
basic premise: "Before Plaintiff can show that his
speech was a substantial or motivating factor in the decision
to [take adverse actions against him], he must at the very
least establish that Defendants knew of the speech."
Ellison v. Roosevelt Cty. Bd. of Cty. Commissioners,
No. CV 16-415 GBW/GJF, 2016 WL 9818330, at *10 (D.N.M. Nov.
17, 2016) (citing Hook v. Regents of Univ. of Cal,
394 Fed.Appx. 522, 539 (10th Cir. 2010).
Court will examine whether Plaintiff has adduced facts
raising a question of fact as to whether his protected speech
was a substantial factor in decisions made by each defendant,
starting with Defendant Mora.
Defendant Mora, Defendants assert that "Mora came on as
Undersheriff [after January 1, 2015]" that
"Plaintiffs sole basis for his claim that Rudy Mora
retaliated against him is that Mora submitted the LEA
90," and that "Plaintiff cannot establish that his
support of Baird in the election was a substantial factor
driving Mora's submission of the LEA 90." [Defs'
SMF, ¶ 21; Doc. 59, pg. 13] Plaintiff generally disputes
this assertion, and states that "Defendant Mora knew or
should have known that the allegations against Plaintiff were
unfounded yet proceeded with the criminal and LEA
referrals." [Pltf's Response, ¶ 21] Plaintiff
fails to demonstrate a question of fact as to whether his
political speech was a substantial factor in Mora's
decision to submit the LEA 90. First, Plaintiffs statement
that Mora "knew or should have known that the
allegations . . . were unfounded" does not address
whether Mora retaliated against Plaintiff based on Plaintiffs
speech. Moreover, evidence submitted by Plaintiff indicates
that Mora did not know that Plaintiff had contributed to
Baird's campaign, a fact essential to Plaintiffs First
Amendment claim. Mora testified as follows:
Q: At any point in time, were you aware - did you ever become
aware that Mr. McCoy supported Scott Baird in the primary
election against Sheriff Houston?
A: I have no idea who he supported.
Q: So you were never aware that - that Mr. McCoy was
supporting Scott Baird in any way?
Q: Okay. Did you ever become aware of an ad that [Plaintiff]
placed in the "Village Voice" newspaper I think