222 F.3d 767 (10th Cir. 2000), 99-1155, Ford v. West

Docket Nº:99-1155
Citation:222 F.3d 767
Party Name:JEWEL FORD, Plaintiff-Appellant, v. TOGO D. WEST, Secretary, Department of the Army; FITZSIMONS ARMY MEDICAL CENTER; CHARLES G. NICELY; ROBERT BLANKENSHIP; JEFFREY RICHARD POWELL, individually, Defendants-Appellees.
Case Date:July 24, 2000
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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222 F.3d 767 (10th Cir. 2000)

JEWEL FORD, Plaintiff-Appellant,



No. 99-1155

United States Court of Appeals, Tenth Circuit

July 24, 2000


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Eva Camacho Woodard, of the Law Office of Eva Camacho Woodard, Lakewood, Colorado, for Plaintiff-Appellant.

Kathleen L. Torres, Assistant United States Attorney (Thomas L. Strickland, United States Attorney and William G. Pharo, Assistant United States Attorney, with her on the brief), Denver, Colorado, for Defendants-Appellees Togo West, Fitzsimons Army Medical Center, Charles Nicely, and Robert Blankenship.

Charles W. Giesen, of Giesen Law Offices, S.C., Madison, Wisconsin, for Defendant-Appellee Jeffrey Powell.

Before SEYMOUR, Chief Judge, ALARCÓN,[*] and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

In July 1997, Plaintiff Jewel Ford filed a complaint in federal district court against Defendant Togo West as the Secretary of the Army (Secretary) and Fitzsimons Army Medical Center (FAMC) alleging two claims of hostile work environment based on racial harassment and retaliation in violation of Title VII. Plaintiff also alleged a conspiracy claim under 42 U.S.C. § 1985(3) against individual Defendants Charles G. Nicely, Robert Blankenship, and Jeffrey Richard Powell based on First and Fifth Amendment violations. Defendants Nicely, Blankenship, and Powell, all of whom worked at FAMC, filed a motion to dismiss the § 1985(3) claim pursuant to Fed. R. Civ. P. 12(b)(6). The district court granted the motion and dismissed the complaint as to those Defendants. The district court subsequently granted the Secretary's and FAMC's motion for summary judgment on Plaintiff's remaining Title VII claims. Plaintiff appeals. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.1

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I. Civil Conspiracy under 42 U.S.C. § 1985(3)

Plaintiff argues the district court improperly dismissed Plaintiff's § 1985(3) action pursuant to Fed. R. Civ. P. 12(b)(6). We review de novo the district court's grant of a Fed. R. Civ. P. 12(b)(6) motion to dismiss. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Id. (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)). We accept all well-pleaded allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Id.


According to the complaint, Plaintiff, an African-American, began working for the Army in 1984 as a civilian tractor operator in the Roads and Grounds Section, Department of Public Works (DPW) at FAMC in Aurora, Colorado. During his employ, Plaintiff, the only black employee in his department, filed at least two successful Equal Employment Opportunity (EEO) claims against FAMC and his supervisors prior to this case based upon racial discrimination.

In this case, Plaintiff alleges he observed a noose hanging from the ceiling of break room number two upon arriving at work on August 9, 1996. The noose was hanging above a chair where Defendant Blankenship, Plaintiff's co-worker, customarily sat.2 Plaintiff, who ordinarily used break room number one, sat briefly in Blankenship's chair in break room number two on the afternoon of August 8, 1996. When Plaintiff's immediate supervisor, Richard Pearson, saw the noose, he laughed.

Plaintiff complained to union steward Helen Bradley about the noose and she accompanied him to the break room to investigate. Plaintiff's second level supervisor, Jimmie Martinez, removed the noose and called a meeting of Roads and Grounds employees. Martinez questioned the employees. No one admitted any knowledge of the noose. Later that morning, however, Defendant Blankenship spoke to Assistant Inspector General Peggy Isakson. Defendant Blankenship told the inspector that an incident had occurred in his workplace involving a hanging noose, but the noose was just meant as a joke. When Isakson asked Defendant Blankenship whether he had played any part in the noose incident, Defendant Blankenship nodded and grinned.

On September 11, 1996, Colonel John Bull, Commander of FAMC, appointed Major Juan Gomez to conduct an AR 15-6 investigation to determine whether the noose incident was an act of racial harassment against Plaintiff. An AR 15-6 investigation is an upper-level investigation in which the investigating officer has authority to administer oaths. During his investigation, Gomez took several sworn statements from employees and work release inmates who performed work for the Roads and Grounds section.

After twice denying any knowledge of the noose incident­once in a sworn statement­Defendant Powell, a work release prisoner, admitted that he had hung the

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noose as a practical joke on Defendant Blankenship because Blankenship had commented that he should be hung for losing a game of dominoes. Defendant Powell did not see Plaintiff sitting in Blankenship's chair. Following his confession, Defendant Powell was removed from the work release program and returned to prison. Major Gomez' investigation revealed Defendant Powell did not hang the noose with any intent to harass Plaintiff. Plaintiff, however, alleged Defendant Nicely, the Director of Public Works at FAMC, conspired with other military members and used the AR 15-6 investigation, normally reserved for military investigations, to cover up the racial motivation behind the hanging noose incident.

Plaintiff also alleged Defendants, presumably Blankenship and Powell, hung the noose to threaten and harass Plaintiff because of his race and because he had previously filed EEO actions. Further, Plaintiff claims Defendant Powell came forward only after he was promised immunity. According to Plaintiff, Defendants Nicely and Powell conspired to write an incomplete and partially false confession for Defendant Powell to conceal the racial motivation behind the noose. Defendants Nicely, Powell, and Blankenship purportedly perpetuated the lie that Defendant Powell was solely responsible for the hanging noose and proceeded to tell this false story to the media. In addition, Plaintiff alleged Defendants Nicely, Powell, and Blankenship conspired to cover up the racial motivation behind the noose to threaten and intimidate Plaintiff because he is black. In support of his cover-up theory, Plaintiff claims Defendant Blankenship gave inconsistent reports regarding whether he was the last person in the building on August 8, 1996.3


Although at times his complaint is repetitive and confusing, Plaintiff appears to assert Defendants conspired to violate his Fifth Amendment equal protection and First Amendment free speech rights in violation of 42 U.S.C. § 1985(3). Plaintiff also asserts Defendants' conspiracy to cover up the racial motivation behind the hanging noose impaired the fairness of the administrative investigations and deprived him of his right to pursue a discrimination complaint under Title VII, 42 U.S.C. § 2000e-16.

Defendants Nicely, Blankenship, and Powell filed a motion to dismiss Plaintiff's § 1985(3) claim pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. A magistrate judge recommended the district court grant the motion, concluding that (1) to the extent Plaintiff based his § 1985(3) Fifth Amendment claim on violations of Title VII, Title VII provided his exclusive remedy; and (2) to the extent Plaintiff based his claim on the First Amendment, Plaintiff failed to identify any speech which could fairly be characterized as a matter of public concern because the alleged speech dealt with personal employment concerns. After considering Plaintiff's objections to the magistrate judge's recommendation, the district court essentially adopted the magistrate's recommendation and dismissed the claims against Defendants Nicely, Blankenship, and Powell.

Section 1985(3) provides for recovery of damages by a party who is injured as a result of a conspiracy to deprive any person equal protection of the laws.4

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Plaintiff's § 1985(3) Fifth Amendment equal protection claim fails, however, because the Supreme Court has clearly held that Title VII provides the exclusive judicial remedy for discrimination claims in federal employment. Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976); see also Belhomme v. Widnall, 127 F.3d 1214, 1217 (10th Cir. 1997) (holding plaintiff's constitutional claims failed "because the Supreme Court has clearly stated that a federal employee's only avenue for judicial relief from federal employment discrimination is through Title VII"). Accordingly, Title VII preempts Plaintiff's § 1985(3) claim for federal employment...

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