Baird v. Cutler

• Decision Date: 18 April 1995
• Docket Number: Civ. No. 94-C-694G.
• Citation: 883 F. Supp. 591
• Parties: Bruce R. BAIRD, Plaintiff and Counterclaim Defendant, v. Roger F. CUTLER, in his individual and official capacities, and Salt Lake City Corporation, Defendants and Counterclaimants.
• Court: U.S. District Court — District of Utah

883 F. Supp. 591

Bruce R. BAIRD, Plaintiff and Counterclaim Defendant, v. Roger F. CUTLER, in his individual and official capacities, and Salt Lake City Corporation, Defendants and Counterclaimants.

Civ. No. 94-C-694G.

United States District Court, D. Utah, Central Division.

April 18, 1995.

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Elizabeth T. Dunning, Watkiss, Dunning & Watkiss, Salt Lake City, UT, for plaintiff.

Stanley J. Preston, Richard A. Van Wagoner, and Max D. Wheeler, Snow, Christensen & Martineau, and Frank M. Nakamura, Salt Lake City Attorney's Office, Salt Lake City, UT, for defendants.

MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This matter came before the Court on (1) Defendant's Motion to Dismiss; (2) Plaintiff's Motion for Partial Summary Judgment; (3) Defendant's Motion for Summary Judgment on Counterclaim for Declaratory Judgment and Injunctive Relief; (4) Plaintiff's Motion for Summary Judgment on the Counterclaim; and (5) Defendants' Motion to Dismiss the Fourteenth, Fifteenth and Sixteenth Claims of Plaintiff's Amended Complaint. Plaintiff Bruce R. Baird was represented by Elizabeth T. Dunning of Watkiss, Dunning & Watkiss. Defendants Roger F. Cutler and Salt Lake City Corporation were represented by Stanley J. Preston, Richard A. Van Wagoner, and Max D. Wheeler, of Snow, Christensen & Martineau, and Frank M. Nakamura, of the Salt Lake City Attorney's Office.

BACKGROUND FACTS

Plaintiff Bruce R. Baird is a Senior Assistant City Attorney for Salt Lake City. This position is designated as a merit-level employee position. In late 1993, Baird was responsible for several legal initiatives in the City Attorney's Office, including the City's gun-control policy.

In addition to his work in the City Attorney's Office, Baird is politically active in the community as a political commentator and former candidate for elected office. On November 10, 1993, he appeared on a local television program called the Vanocur Group. The program format consisted of a discussion group which was comprised of several local political pundits, including Baird. Baird's affiliation with the City Attorney's Office was not mentioned on the program. Near the end of the program, the participants were asked to make a final comment concerning recent political events. Baird's comment focused on the recent debate between former presidential candidate Ross Perot and Vice President Al Gore on the topic of the North American Free Trade Agreement, and included this statement: "Perot believes that everyone is trying to assassinate him; he's still alive — too bad!"

After the Vanocur Group program was aired, two local newspaper reporters, who author a popular column in which comments concerning current political and other events are often made, wrote that there was some irony that Baird (identified as an Assistant City Attorney) would simultaneously advocate assassination and be responsible for the City's gun-control policy. This column came to the attention of Defendant Roger Cutler, City Attorney. On December 1, 1993, Deputy City Attorney Steven Allred told Baird that Cutler was angered by Baird's controversial remarks and the media response. On December 2, 1993, three Perot supporters came to the City Attorney's Office and asked to speak with Baird. Baird met with the three supporters briefly, but refused to converse with them while at his City office about his remarks on the program. Later that same day, Cutler met with Baird (Allred was also present) and told him that he (Baird) had mistreated the Perot supporters and disrupted the office. Cutler also told Baird that he was being placed on probation pending formal disciplinary proceedings.

On December 8, 1993, Cutler sent a memorandum to Baird that reiterated Baird's probationary status and stated that disciplinary measures were being considered. In the month that followed, Cutler and Baird discussed the matter together and with Elizabeth Dunning, Baird's attorney. On January 4, 1994, Cutler sent a letter to Baird and Dunning in which Cutler stated that the probation was "advisory" at that time, and that any disciplinary decisions would be made at a later time after investigation. Cutler obtained a copy of the Vanocur Group tape, and Baird gave Cutler copies of the affidavits of two City employees favorable to himself concerning Baird's interaction with the Perot supporters.

On March 9, 1994, Cutler provided a draft disciplinary memorandum for Baird's review and comment. Several events within the past three years were listed in the memorandum which Cutler claimed constituted evidence of a pattern of disruptive behavior by Baird that adversely affected the City Attorney's Office. Included in this list was an incident in which Baird allegedly had been overly critical of an employee who made a mathematical error in budget calculations. Baird made some recommendations regarding changes to the draft, including a comment that the reference to the incident involving the budgetary error was inappropriate. Cutler then made some changes based on Baird's comments, and issued a final disciplinary memorandum on April 20, 1994. The memorandum contained private reprimands for Baird's perceived rude treatment of the Perot supporters and for his comments on the Vanocur Group program. No mention of the budgetary error incident was included in the final disciplinary memorandum. Baird was removed as counsel for the City on the gun-control matter, but he was not demoted, and his salary and benefits were not reduced.

On July 13, 1994, Baird brought the present suit against Cutler, in his individual and official capacities, under 42 U.S.C. § 1983, alleging violations of his free speech rights under the U.S. and Utah Constitutions, violations of his due process rights under the U.S. and Utah Constitutions, violations of his rights under the Utah Protection of Public Employees Act ("Whistleblower Act"), Utah Code Ann. § 67-21-3, and breach of employment contract. Baird seeks withdrawal of the reprimands, damages for humiliation and emotional distress, punitive damages, expungement of his personnel record, attorney's fees and costs, and such other relief the Court deems just.

Baird filed an amended complaint on October 12, 1994, alleging that certain acts of retaliation by Cutler against him occurred since the original action was filed, including intimidation of a City employee who Baird claims would testify on his behalf, attempting to demote Baird, and attempting to impose additional disciplinary sanctions on Baird for reporting another incident of budgetary waste. The supplemental retaliation claims are set forth in plaintiff's Fourteenth, Fifteenth and Sixteenth claims. Salt Lake City Corporation and Cutler have filed counterclaims.

STANDARDS IN RE MOTION TO DISMISS AND MOTION FOR SUMMARY JUDGMENT

In considering a motion to dismiss under Rule 12(b)(6), the Court looks only to the complaint and construes it in the light most favorable to the plaintiff, assuming all allegations to be true. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). A straight-forward motion to dismiss should not include supporting documents, such as affidavits, or assert affirmative defenses. When matters outside the pleadings are presented, the Court may treat a motion to dismiss as one for summary judgment and proceed under applicable Rule 56 provisions. Fed.R.Civ.P. 12(b); Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 1234, 31 L.Ed.2d 569 (1972) (per curiam). In this case, both parties have submitted affidavits and other supporting documents, and defendants have asserted affirmative defenses as part of their Motion to Dismiss and in response to Plaintiff's Motion for Partial Summary Judgment. The cross motions were presented by the parties, and were regarded by the Court, as "speaking" motions in the nature of motions for summary judgment.¹

The standard for summary judgment motions requires that there is no genuine issue of material fact, such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. "A party seeking summary judgment always bears the initial responsibility of informing the court of the basis of the motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The moving party need not produce evidence to show the absence of a genuine issue of material fact, and may satisfy its responsibility by demonstrating to the Court that there is an absence of evidence to support the nonmovant's case. Id. at 325, 106 S.Ct. at 2553. When a properly supported motion for summary judgment has been made, the nonmovant must set forth specific facts which show the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

ANALYSIS

The Court first will address the claims set forth in the original complaint which are the subject of Defendants' Motion to Dismiss and Plaintiff's Motion for Partial Summary Judgment. The federal claims set forth in the original complaint consist of free speech claims under the First Amendment and due process claims under the Fifth and Fourteenth Amendments. State law claims are also appended consisting of free speech claims under Article I, §§ 1 and 15 of the Utah State Constitution, state due process of law claims, claims under the Utah Protection of Public Employees Act, Utah Code Ann. § 67-21-3 ("Whistleblower Act"), and a breach of contract claim.

Second, the Court will address the supplemental claims set forth in the amended complaint which are the subject of Defendants' Motion to Dismiss Plaintiff's Fourteenth, Fifteenth and Sixteenth...