511 F.3d 1072 (10th Cir. 2007), 06-1283, Teigen v. Renfrow

Docket Nº:06-1283.
Citation:511 F.3d 1072
Party Name:David TEIGEN; Timothy Bennett, Plaintiffs-Appellants, v. Nolin RENFROW, individually; Madline Sabell, individually; Joe Ortiz, individually and in his official capacity; Gary Golder, only in his official capacity as Acting Director of Prisons and successor of Nolin Renfrow; John Does I Through IV, Defendants-Appellees.
Case Date:December 27, 2007
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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511 F.3d 1072 (10th Cir. 2007)

David TEIGEN; Timothy Bennett, Plaintiffs-Appellants,


Nolin RENFROW, individually; Madline Sabell, individually; Joe Ortiz, individually and in his official capacity; Gary Golder, only in his official capacity as Acting Director of Prisons and successor of Nolin Renfrow; John Does I Through IV, Defendants-Appellees.

No. 06-1283.

United States Court of Appeals, Tenth Circuit.

Dec. 27, 2007


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William S. Finger, Frank & Finger, P.C., Evergreen, CO, for Appellants.

Douglas J. Cox, Colorado Attorney General's Office, (David R. DeMuro and Lana L. Steven, Vaughan & DeMuro; Cathy Havener Greer and William T. O'Connell, III, Wells Anderson & Race, LLC, with him on the brief), Denver, CO, for Appellees.

Before BRISCOE, SEYMOUR, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

David Teigen and Timothy Bennett (collectively, "Plaintiffs") filed suit pursuant to 42 U.S.C. § 1983, against Nolin Renfrow, former Director of Prisons for the Colorado Department of Corrections ("DOC"); Madline SaBell, former Director of the Human Resource Office of the DOC; and Joe Ortiz, Executive Director of the DOC (collectively, "Defendants"). Plaintiffs also named Ortiz and Gary Golder, Acting Director of Prisons of the DOC, in their official capacities, as defendants in the action. In their complaint, Plaintiffs alleged Defendants acted in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment by engaging in a policy of blacklisting employees who maintained administrative appeals of state personnel actions.

The district court granted Defendants' motions to dismiss for failure to state a claim upon which relief could be granted. It concluded Plaintiffs had failed to allege the deprivation of a constitutionally protected property interest and had failed to overcome the presumption of government rationality applicable to cases of rational basis scrutiny. Plaintiffs now appeal the district court order granting Defendants' motions to dismiss. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.

II. Background

Plaintiffs were DOC employees at all times relevant to this appeal. Prior to

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May 2003, Teigen was employed as a Case Manager III in the Territorial Correctional Facility located in Canon City, Colorado. During the same period, Bennett held the position of General Professional III, Life Safety Officer, also in Canon City, Colorado. Both Teigen and Bennett were certified employees of the classified state personnel system and were therefore entitled to certain protections under state law in the event of a layoff. See Colo. Rev. Stat. § 24-50-124.

According to Plaintiffs' allegations, both were informed in May 2003 that their positions were being abolished as part of a statewide reduction in force. Each was permitted to move into other positions by exercising retention rights provided under state law. Teigen was ultimately transferred to another position in Canon City and Bennett was transferred to a position at Fort Lyon Correctional Facility in Fort Lyon, Colorado. This facility is located three to four hours away from his permanent residence in Canon City.

Following the abolition of their positions and their subsequent reassignments, Plaintiffs filed appeals with the Colorado State Personnel Board. In these appeals, Plaintiffs argued the DOC violated state law by abolishing their positions and improperly determining their retention rights. Teigen was ultimately successful in his appeal. An administrative law judge ("ALJ") entered an order concluding the DOC had illegally abolished Teigen's position and eliminated his retention rights. The order reinstated Teigen to his position retroactive to May 2003 and required the DOC to pay all attorney fees and costs incurred by Teigen in his appeal. Bennett's appeal was still pending before the Personnel Board at the time the complaint in this matter was filed.1

Three months after the layoff process, on August 15, 2003, while Plaintiffs' appeals were pending with the Personnel Board, Renfrow sent an email to the wardens of all DOC facilities, which stated the following:

Please be aware that one of the conditions of offering displaced staff a position in your facility is that they MUST drop their cases against us. Offering a person a position at the same pay and grade means their pay, tenure and status have not been adversely affected[;] therefore[,] they have no standing and allowing them to continue their appeals will just clog up the DPA with cases that have no merit. I will have [my administrative assistant] e-mail a list of staff that has filed appeals against the department.

The decision to send this email was agreed upon by each of the Defendants in an executive staff meeting. Four days later, Renfrow's administrative assistant sent another email that included a list of all employees who had filed appeals against the DOC. This list contained more than 100 names, including the names of both Plaintiffs. Plaintiffs allege these emails established an official DOC policy, implemented by each of the Defendants acting in concert, of blacklisting all employees who maintained administrative appeals contesting the layoff process.

Based on this alleged blacklist, Plaintiffs assert employees who did not drop their appeals were targeted by the DOC and denied opportunities for career advancement,

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regardless of their qualifications. The ALJ in Teigen's appeal determined the August 15 email and the policy it implemented were retaliatory and contrary to applicable state law. Therefore, in addition to the remedies noted above, the ALJ ordered the email to be rescinded and directed the DOC to refrain from retaliating against Teigen for filing the appeal. Despite this order, however, Plaintiffs allege Defendants continue to apply a policy of denying employment opportunities to those employees who did not drop their administrative appeals.

Specifically, Teigen asserts he was repeatedly denied promotion opportunities as a result of the blacklist, despite his superior qualifications. Teigen alleges Defendants refused to use an eligibility list on which he placed in the top three candidates, intentionally allowing the list to expire so he could not obtain a promotion. Like Teigen, Bennett claims the blacklist resulted in him being denied a promotion which he was qualified to receive. He further asserts he was repeatedly denied the opportunity to transfer from Fort Lyon to an equivalent position in Canon City, where he permanently resides. Bennett also lists three additional instances in which he was targeted as a result of the blacklist, including the denial of a letter of recommendation, the reassignment of a prison dog previously assigned to Bennett for training, and the refusal to grant his request for two days of funeral leave to attend the funeral of his father-in-law. Plaintiffs allege the sole reason for the denial of these employment opportunities was the implementation of the blacklist.

In addition, Plaintiffs' complaint challenges the issuance of Administrative Regulation 1450-12. This regulation, which Plaintiffs allege was promulgated by Ortiz, states in relevant part:

It is the policy of the Department of Corrections (DOC) not to reward poor performance or behavior. Employees who have received a disciplinary action or have been found to have violated the DOC's prohibition on sexual harassment and/or illegal discrimination are not eligible to apply for promotions with the DOC for a period of 12 months.... Employees with disciplinary action under appeal are not eligible to apply.

Bennett was subject to disciplinary action in August 2003 and still had an appeal of the disciplinary action pending at the time of the complaint, more than twelve months after the action had been filed. Bennett alleges that in addition to the blacklisting policy, he was categorically excluded from promotion opportunities simply because his disciplinary action remained pending on appeal.

Plaintiffs filed suit against Defendants pursuant to 42 U.S.C. § 1983, alleging they had been unlawfully denied career opportunities as a result of the blacklist and the challenged administrative regulation, in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They sought damages for economic losses, as well as an injunction against future constitutional violations. Defendants filed separate motions to dismiss, arguing Plaintiffs had not properly alleged a deprivation of a cognizable property interest and had failed to allege facts sufficient to overcome rational basis review. The district court granted the motions. In doing so, it agreed with Defendants that Plaintiffs did not allege the deprivation of any rights that could constitute property under the Fourteenth Amendment. It then concluded that with respect to the equal protection claims, Plaintiffs had failed to overcome the presumption of government rationality applicable to rational basis scrutiny.2

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III. Analysis

This court reviews de novo the district court's grant of a motion to dismiss pursuant to Rule 12(b)(6), applying the same legal standard applicable in the district court. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). All well-pleaded facts, as distinguished from conclusory allegations, are accepted as true and viewed in the light most favorable to the nonmoving party. Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005). Documents attached to the complaint are considered as part of the pleadings. Tal v. Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006). In reviewing a motion to dismiss,...

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