David v. City and County of Denver

• Decision Date: 03 December 1996
• Docket Number: No. 94-1263,94-1263
• Citation: 101 F.3d 1344
• Parties: 73 Fair Empl.Prac.Cas. (BNA) 1021 Dorothy Monica DAVID, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER; Wellington Webb, Mayor of the City and County of Denver; James Collier, Chief of Police, City and County of Denver; Beth McCann, Manager of Safety, City and County of Denver; Stanley Baniszewski; John R. Johnson; William Honer; James Leo; Clayton Kelly Carpenter, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1344

101 F.3d 1344

73 Fair Empl.Prac.Cas. (BNA) 1021

Dorothy Monica DAVID, Plaintiff-Appellant, v. CITY AND COUNTY OF DENVER; Wellington Webb, Mayor of the

City and County of Denver; James Collier, Chief of Police,

City and County of Denver; Beth McCann, Manager of Safety,

City and County of Denver; Stanley Baniszewski; John R.

Johnson; William Honer; James Leo; Clayton Kelly

Carpenter, Defendants-Appellees.

No. 94-1263.

United States Court of Appeals,

Tenth Circuit.

Dec. 3, 1996.

Rehearing Denied March 31, 1997.

Barry D. Roseman (George C. Price with him on the briefs), Denver, CO, for Plaintiff-Appellant.

J. Wallace Wortham, Jr., City Attorney, City and County of Denver (Robert A. Dill and Casey D. Paison, Dill, Dill, Carr & Stonbraker, P.C., Denver, CO, with him on the briefs), for Defendants-Appellees.

Before HENRY, SETH ^*, and BRISCOE, Circuit Judges.

HENRY, Circuit Judge.

Denver Police Officer Dorothy Monica David appeals the district court's judgment in favor of the City and County of Denver, Mayor Wellington Webb, former Manager of Safety Manuel Martinez, former Chief of Police Aristedes Zavaras, Captain Clayton Kelly Carpenter, Lieutenant James Leo, Sergeant William Honer, and Denver Police Officers Stanley Baniszewski and John R. Johnson on her claims of sexual harassment and retaliation pursuant to 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to 2000e-17. Officer David advances the following arguments: (1) that the trial judge should have recused from the case because of his contacts with the Denver Police Department; (2) that the court erred in dismissing her § 1983 claims against Officers Baniszewski and Johnson on the grounds that they did not act under color of law when engaging in the alleged harassment and retaliation; (3) that the court erred in granting summary judgment to Manager of Safety Martinez, Chief Zavaras, Captain Carpenter, Lieutenant Leo, and Sergeant Honer on her § 1983 retaliation claim on the grounds that her speech did not address a matter of public concern; (4) that the court erred in dismissing her § 1983 claim against the City of Denver because the alleged constitutional violations were not caused by a municipal policy or custom; and (5) that the court erred in entering judgment in favor of the defendants after a bench trial on her Title VII harassment and retaliation claims.

We exercise jurisdiction under 28 U.S.C. § 1291. We conclude that the district court erred in dismissing Officer David's § 1983 claim against Officers Baniszewski and Johnson. However, in all other respects, we affirm the decision of the district court.

I. BACKGROUND

Officer David began working for the Denver Police Department (the Department) in 1976 and became a regular commissioned officer in 1979. In the mid-1980s, she also worked off-duty as a security guard at an apartment complex with Officers Baniszewski and Johnson. According to Officer David, Officer Baniszewski made uninvited sexual advances toward her during their off-duty employment. She maintains that when she refused Officer Baniszewski's advances, he and Officer Johnson began to harass and threaten her and continued to do so after she reported their conduct to Department supervisors. Eventually, she asserts, Officers Baniszewski and Johnson convinced the manager of the apartment complex to fire her from her off-duty security job by making false statements about her record as a police officer.

According to Officer David, the Department failed to adequately respond to her informal complaints about Officers Baniszewski and Johnson. As a result, in April 1989, she filed a formal complaint with the Department's Internal Investigation and Inspection Bureau (the IIIB complaint). She named not only Officers Baniszewski and Johnson but her immediate supervisor, Sergeant Honer. After conducting an investigation, the Department concluded that her allegations were unfounded.

Shortly after Officer David filed the IIIB complaint, Captain Carpenter transferred her to a different shift. He testified at trial that he made this decision in order to separate Officer David from Officers Baniszewski and Johnson. Then, on April 28, 1989, Officer David was approximately one minute late for daily roll call. Lieutenant Leo determined that disciplinary action should be taken against Officer David for tardiness. Witnesses for the Department testified at trial that Officer David had been warned about Lieutenant Leo's strict roll call policies and that she had been suspended for thirty days in May 1988 for chronic tardiness. Under the terms of the May 1988 suspension order, twenty days of the suspension were held in abeyance on the condition that Officer David was not further disciplined for tardiness for one year.

Pursuant to Lieutenant Leo's decision, the disciplinary case against Officer David for being late for roll call was referred to Chief Zavaras. He recommended a twenty day suspension, and Manager of Safety Martinez approved his recommendation. However, Officer David appealed to the Denver Civil Service Commission, and a hearing officer eventually vacated the suspension.

On May 3, 1989, Officer David filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that she had been sexually harassed by a coworker. She asserted that she had complained about the harassment to her supervisors but that "[n]o corrective action has been taken to stop the harassment nor has any disciplinary action been taken against the harasser." Aplt's App. vol. I, at 138. She also alleged that she had been threatened with a ninety day suspension within the next month.

On Monday May 16, 1989, Officer David arrived at roll call ten minutes before her normal reporting time. She had been informed by her supervisor on the previous Friday that she should report an hour early. The duty sergeant reported her tardiness, and the matter was again referred to Chief Zavaras, who set it for hearing in August 1989.

In June 1989, Officer David sent a letter to the Denver City Attorney announcing that she would pursue claims against the City and individual police officers for sexual harassment and retaliation. She referred to sexual harassment by Officer Baniszewski and a pattern of discrimination and harassment by Officers Baniszewski and Johnson when she refused Officer Baniszewski's advances. She also repeated the allegation that her supervisors failed to take adequate action regarding the harassment and retaliated against her for complaining about the harassment by pursuing unwarranted disciplinary actions against her. In July 1989, Officer David filed a second EEOC complaint alleging that the sexual harassment and retaliation had continued.

In August 1989, Chief Zavaras conducted a hearing concerning the May 16th roll call incident. In light of her previous record of tardiness, Chief Zavaras recommend a six months' suspension. Pursuant to Department procedure, the matter was referred to Manager of Safety Martinez, who accepted Chief Zavaras's recommendation. Officer David appealed the case to the Denver Civil Service Commission, which reduced the suspension to three months.

Officer David filed the instant case in January 1990. She asserted a § 1983 sexual harassment claim against Officers Baniszewski and Johnson, a § 1983 claim for violation of her First Amendment rights against the City of Denver, Manager of Safety Martinez, Chief Zavaras, Captain Carpenter, Lieutenant Leo, and Sergeant Honer, and Title VII sexual harassment and retaliation claims against all of the defendants. The defendants filed a motion to dismiss all of the § 1983 claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The district court granted the motion to dismiss as to Officers Baniszewski and Johnson, the City of Denver, and Mayor Wellington Webb but denied the motion as to the remaining individual defendants. With regard to Officers Baniszewski and Johnson, the court reasoned that the allegations concerned off duty actions not taken under color of law. As to the City of Denver and Mayor Wellington Webb, the court said that there was no municipal policy underlying the alleged constitutional violations.

Shortly before trial, the remaining individual defendants filed a motion for summary judgment arguing that Officer David's complaints about sexual harassment and retaliation did not address matters of public concern and that, as a result, they were entitled to summary judgment on her § 1983 First Amendment claim. The court granted the motion and proceeded to trial on only the Title VII sexual harassment and retaliation claims.

At the final pretrial status conference, the trial judge informed the parties that he was acquainted with the following witnesses listed by the defendants: David Michaud, who had succeeded Mr. Zavaras as Denver Police Chief; Denver Police Sergeant Armedia Gordon; Manager of Safety Martinez; and Denver Police Captain Tina Rowe. The judge reported that he had represented Chief Michaud in his official capacity as Deputy Sheriff in a § 1983 action filed over twenty years ago. Between the conclusion of the § 1983 case and December 1992, the judge stated, he had four or five casual conversations with Chief Michaud. Then, in December 1992, the judge's son was murdered. The judge recalled two or three conversations with Chief Michaud about the homicide investigation.

The judge's contacts with the other witnesses were more limited. He stated that he had spoken with Sergeant Gordon during the investigation of his son's murder. He also told the parties that, when he was on the state trial bench, Mr. Martinez had appeared before him as a public defender. He remembered several passing conversations with Mr. Martinez in the course of trying cases. Finally, the trial judge said that although he did not recall meeting captain Tina Rowe, he was familiar with her work as a police officer.

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