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McCoy v. Houston

United States District Court, D. New Mexico

September 13, 2018

DAN HOUSTON, in his individual capacity, MANUAL GONZALES, III, in his individual capacity, RUDY MORA, in his individual capacity, LIEUTENANT PETE GOLDEN, in his individual capacity, BERNALILLO COUNTY, ex rel. THE BERNALILLO COUNTY SHERIFF'S OFFICE and THE BOARD OF COUNTY COMMISSIONERS, Defendants.



         THIS 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' Motion.

         I. Background

         Plaintiff 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]

         A. Campaign Contributions and the 2014 Election

         2014 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, ¶ 5]

         Scott 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]

         B. Incidents Leading to an Internal Affairs Investigation of Plaintiff

         In 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.[1] 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, ¶ 9]

         Defendant 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 Response, ¶15]

         C. The Internal Affairs Investigation, Criminal Investigation, and Submission of the LEA 90

         Defendant 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]

         D. Investigations of Other Officers

         Finally, 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. [Id.]

         Additional facts are included in the Court's discussion of the parties' arguments.

         II. Discussion

         A. Summary Judgment and 12(b)(6) Standards

         Defendants 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 (D.Kan. 1997).

         The 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.

         B. Count I

         In 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.

         1. Whether Freedom of Speech Claims Must be Analyzed under the First, not Fourteenth, Amendment

         Defendants 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 infringed.").

         The 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.

         2. The First Amendment Claim and the Garcetti/Pickering Analysis

         Defendants 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 Garcetti/Pickering analysis." 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 employment decision.
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.

         For 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]

         The 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.

         Under 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 Defendants.

         "Actions 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).

         Next, 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).

         The 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.

         As to 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?
A: No.
Q: Okay. Did you ever become aware of an ad that [Plaintiff] placed in the "Village Voice" newspaper I think ...

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