551 F.3d 1188 (10th Cir. 2009), 07-4139, Potts v. Davis County

Docket Nº:07-4139.
Citation:551 F.3d 1188
Party Name:Duane E. POTTS, Plaintiff-Appellant, v. DAVIS COUNTY; Davis County Sheriff's Office; Kevin McLeod; Bud Cox, Defendants-Appellees.
Case Date:January 06, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 1188

551 F.3d 1188 (10th Cir. 2009)

Duane E. POTTS, Plaintiff-Appellant,


DAVIS COUNTY; Davis County Sheriff's Office; Kevin McLeod; Bud Cox, Defendants-Appellees.

No. 07-4139.

United States Court of Appeals, Tenth Circuit.

January 6, 2009

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[Copyrighted Material Omitted]

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Roger H. Hoole (Gregory N. Hoole with him on the briefs) of Hoole & King, L.C., Salt Lake City, UT, for Plaintiff-Appellant.

Kristin A. VanOrman (Jeremy G. Knight with her on the brief) of Strong and Hanni, Salt Lake City, UT, for Defendants-Appellees.

Before McCONNELL, SEYMOUR, and GORSUCH, Circuit Judges.

SEYMOUR, Circuit Judge.

Duane Potts resigned from his position as Sergeant with the Davis County Sheriff's Department and filed a 42 U.S.C. § 1983 constructive discharge suit against Davis County, the Davis County Sheriff's Office, Lieutenant Kelly Sparks, Davis County Sheriff Bud Cox, and Chief Deputy Sheriff Kevin McLeod. He also alleged that defendants effectively terminated his employment in violation of his procedural and substantive due process rights. Mr. Potts appeals the district court's grant of summary judgment for defendants. We affirm.


Mr. Potts began working for the Davis County Sheriff's Department in 1977. In 1984, he was promoted to the rank of Sergeant, a position he held until January 2001. From 1992 until January 2001, Mr. Potts was a paramedic and worked as a Patrol Sergeant supervising between seven and ten paramedic deputy sheriffs.

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On December 16, 1999, Chief Deputy Sheriff Kevin McLeod assigned Lieutenant Kelly Sparks to conduct an internal investigation into several complaints made against Potts by deputies whom Potts supervised. On February 2, 2000, following an interview with Mr. Potts and a pre-disciplinary conference with Mr. Potts and his attorney, Chief Deputy Sheriff McLeod informed Mr. Potts that he was terminated from employment with the Davis County Sheriff's Department. He gave Mr. Potts a Notice of Disciplinary Action which set forth six policy violations which had allegedly led to his termination: (1) receiving a gratuity in the form of a Palm Pilot from a subordinate deputy in exchange for a special assignment, (2) failing to insure his crew was staffed at a minimum level, (3) failing to respond to calls for assistance from other law enforcement officers, (4) requiring his crew to leave assigned areas to attend meetings, (5) spending an inordinate amount of time in inactive capacity, and (6) verbally abusing, threatening, and intimidating subordinates.

Mr. Potts appealed his termination to the Career Services Counsel (CSC), the merit system commission with the responsibility to hear appeals from disciplinary actions involving deputy sheriffs. Two hearings were held during which the Sheriff's Department dropped three of the six charges: inadequate staffing, forcing his crew to leave assigned areas, and spending too much time in inactive capacity. On July 27, 2000, the CSC issued a decision reversing the Sheriff's Department's termination of Mr. Potts. He was then reinstated as a deputy sheriff with the rank of sergeant. However, he was reassigned to court security rather than returned to patrol.

In deciding to reassign Mr. Potts to the courts, Sheriff Cox and Chief Deputy Sheriff McLeod noted that they had concerns about allowing him to return to his patrol position given that he would be in a supervisory role over the very people who had made the original allegations. Mr. Potts objected to the reassignment, but began working in court security. Following his reinstatement, he received all of his back salary for the period of time between his termination and his reinstatement. His salary, rank, and benefits remained the same except that he was no longer eligible to work night shifts and to receive the differential pay that would result, and he did not have a county vehicle to drive for several weeks.

Mr. Potts continued to request reassignment to his former position as a patrol supervisor, asserting that the transfer to court security was a demotion. He believed he was continually being retaliated against in numerous ways, and he complained that he was not receiving adequate backup protection from the Sheriff's Department when he had to serve protective orders.

In December 2000, Mr. Potts received a voice mail message on his work phone that had been left the previous evening. The message was largely incoherent, although the words “ he's gonna die" appeared to him to have been spoken towards the beginning of the message. Aplt.App. at 563. Mr. Potts interpreted the message as a death threat from someone in the Sheriff's department because his work telephone number was not available to the general public. He reported the message to his supervisor. After listening to the tape, however, the Sheriff's Department declined to conduct an investigation. Feeling that this was the last straw, Mr. Potts sent a letter of resignation to the department on January 7, 2001, which was accepted.

Mr. Potts filed this § 1983 action asserting that he was deprived of a property right without due process when he was reassigned to court security...

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