McDonald v. City of Denver

• Decision Date: 13 May 2013
• Docket Number: Civil Action No. 12–cv–2996–JLK.
• Citation: 945 F.Supp.2d 1201
• Parties: Wayne McDONALD, Plaintiff, v. Amber MILLER, in her official capacity as the Mayor's Press Secretary and in her individual capacity, Michael Hancock, in his official capacity as Mayor and in his individual capacity, and City and County of Denver, Defendants.
• Court: U.S. District Court — District of Colorado

945 F.Supp.2d 1201

Wayne McDONALD, Plaintiff,

v.Amber MILLER, in her official capacity as the Mayor's Press Secretary and in her individual capacity, Michael Hancock, in his official capacity as Mayor and in his individual capacity, and City and County of Denver, Defendants.

Civil Action No. 12–cv–2996–JLK.

United States District Court, D. Colorado.

May 13, 2013.

Anne Thomas Sulton, Sulton Law Offices, Milwaukee, WI, for Plaintiff.

Gillian Marie Fahlsing, Thomas Sullivan Rice, Senter Goldfarb & Rice, LLC, Denver, CO, for Defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS (Doc. 14)

KANE, Senior District Judge.

Former Denver mayoral political appointee Wayne McDonald filed suit after being accused of sexually harassing a Denver police officer and fired as a result. The appointee claims the allegations were false and that his termination, which occurred before any opportunity for a hearing to clear his name, constituted a breach of his employment contract and violated his due process rights under the Colorado state and federal constitutions. Plaintiff also asserts a state law privacy claim under the Colorado Open Records Act premised on the disclosure of the sexual harassment allegations to the press. Defendants move to dismiss. I grant the Motion.

I have original jurisdiction over this matter based on Plaintiff's 42 U.S.C. § 1983 constitutional due process claim under 28 U.S.C. § 1331. For purposes of the instant Motion, I exercise supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367(c)(3).

Discussion.¹

During the time relevant to his claims and until his termination in May or June of 2012, Plaintiff Wayne McDonald served as a paid advisor and projects manager for Denver mayor Michael Hancock. Denver police officer Lesli Branch Wise was a member of the Mayor's security detail. Am. Compl. ¶ 21. As McDonald traveled around the city with Hancock, he “would see and interact with Wise.” Am. Compl. ¶ 23. McDonald acknowledges he and Wise “engaged in conversations ranging from workplace issues, sporting event, and personal matters,” on the phone and in person, over a period of time from July 2011 to March 2012. Id. ¶¶ 23–34.

On May 18, 2012, McDonald was called to a meeting where he was told Wise had accused him of sexual harassment. Am. Compl. ¶ 37–38. He denied the allegation ( id. ¶ 39) and agreed to cooperate in an investigation by Mountain States Employer's Council (¶¶ 40–43). Three days later, the Mayor's deputy chief of staff, Stephanie O'Malley, asked McDonald to meet her at a local restaurant. There, O'Malley and Denver City Attorney Doug Friednash referred to the sexual harassment allegations and told McDonald that based on them, he would have the option of resigning his position or being fired. Id. at ¶¶ 45–46. McDonald again denied he sexually harassed Wise and asked for an opportunity to defend against the claims, stating an investigation would reveal that Wise had “lied.” ¶¶ 47–48. Instead, Friednash told McDonald that he was fired. ¶ 49. McDonald received nothing in writing about the allegations and was given no hearing or other opportunity to address the accusations until several months later, when he appealed the denial of his claim for unemployment benefits. Am. Compl. ¶¶ 51–53, 69–76.

In mid-June 2012, news reporters began contacting McDonald requesting interviews regarding his termination from the Mayor's office indicating, to McDonald, that they had “heard rumors he was fired for sexual harassment.” Am. Compl. ¶ 54. On June 20, through his attorney, McDonald notified the City Attorney's Office of certain Colorado Open Records Act (CORA) requests for information that had been made by the press seeking information regarding his termination, and informed the City Attorney's Office that he opposed the release of any and all protected information. ¶ 55. Notwithstanding this request, McDonald claims that on June 21, 2012, the Mayor's press secretary—Defendant Amber Miller—“sent email(s) and/or other forms of communications to news reporters informing them that McDonald was fired because of ‘serious allegations of misconduct.’ ” Am. Compl. ¶ 56. According to McDonald, the Denver Post and other local news media outlets then published stories “stating McDonald was fired because of ‘serious allegations of misconduct’ ” and, according to McDonald, specifying that the allegations “concern[ed] a complaint filed by an unnamed female Denver police officer that McDonald sexually harassed her.” ¶ 57.

McDonald filed the instant lawsuit in federal court on November 14, 2012, naming Ms. Wise, Mayor Hancock, Amber Miller, and the City and County of Denver as Defendants. The operative Amended Complaint articulates three claims for relief against the remaining Defendants: (1) a claim against Amber Miller for “Violation of the Colorado Open Records Act,” C.R.S. 24–72–204 et seq.; (2) a claim for breach of employment contract against Mayor Hancock; and (3) a claim for “Violation of Due Process” against the City and against Hancock and Miller in both their “official” and “individual” capacities. As summarized below, the state causes of action fail on several grounds to state viable claims for relief, and the due process claim is cluttered with erroneous and superfluous concepts and buzzwords that confuse the issues and render meaningful analysis difficult. Once cleared of the non-germane, the due process claim nevertheless fails to state a claim because the statements attributed to the Mayor and his staff are not, under the facts alleged, defamatory.

Plaintiff's claims generally

To distill the essence of McDonald's claims in this case, I must separate factual allegations from conclusory assertions and excise legal theories that hold no water.² Once cleared of its detritus, only a single claim under 42 U.S.C. § 1983 merits any serious scrutiny.

The obvious issues first, in summary form:

• Plaintiff's CORA Claim. As Defendants point out in their Motion to Dismiss, there is no private right of action under the Colorado Open Records Act. See Shields v. Shetler, 682 F.Supp. 1172, 1176 (D.Colo.1988). The exclusive remedy for a violation of the Act is criminal, in the form of a “fine of not more than one hundred dollars, or by imprisonment in the county jail for not more than ninety days, or [both].” C.R.S. 24–72–206.

In response to this truism, McDonald recasts the claim in terms of the “legitimate expectation” of privacy analysis for discovery disclosures under Martinelli v. District Court In and For the City and County of Denver, 199 Colo. 163, 612 P.2d 1083, 1091–1094 (1980). See Br. (Doc. 18) at 17 (“[e]ssentially, McDonald is asserting a right to privacy in his confidential personnel records and basing this privacy right ... on the disclosure directions contained in [CORA]”). If that analysis fails to fly, McDonald asks for leave to amend his complaint a second time “to bring these concerns under the Fourteenth Amendment or other appropriate legal theory.” Pl's Resp. to Mots. to Dismiss (Doc. 18) at 18–19 of 41.

The request is DENIED. Plaintiff has already asserted a Fourteenth Amendment due process claim premised on allegations that Defendants “created and disseminated a false and defamatory impression about McDonald [by making the disclosures McDonald claims violated Open Records Act prohibitions] in connection with the termination of [his] employment” (Am. Compl. ¶ 109) and amendment to add another Fourteenth Amendment claim to that effect would be redundant. Moreover, a Martinelli-based privacy interest is recognized in the context of discovery and relates to the disclosure of actual personnel files, neither of which applies or is germane to the facts alleged in this case. See Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432, 435 (10th Cir.1981).³

Accordingly, the CORA claim is DISMISSED, and because any reasonable inquiry by counsel before signing the pleadings in this case would have revealed the lack of any private right of action under C.R.S. 24–72–204, counsel is put on notice that her actions in signing the Complaint and Amended Complaint to include the claim may be subject to sanctions under Fed.R.Civ.P. Rule 11.

• Breach of Contract Claim. With respect to the breach of contract claim, McDonald's complaint fails to meet the Iqbal/Twombly plausibility standard for pleading. The complaint makes only conclusory allegations that McDonald had a valid and binding employment contract with the City and fails to allege any facts to support the contention that such a contract was breached. Irrespective of these deficiencies, McDonald fails to state a claim for breach of contract in the complaint.

In Colorado, local government employees are at-will employees who “hold their posts at the pleasure of the proper local government authorities and can be dismissed without cause, in the absence of restrictions or limitations provided by law.” Darr v. Town of Telluride, Colo., 495 F.3d 1243, 1252 (10th Cir.2007). The Denver City Charter specifically provides that “up to fifty employees may be appointed to serve at the pleasure of the Mayor.” Denver City Charter § 9.1.1(E)(iv). McDonald concedes he received an “appointment letter” from the Mayor on July 11, 2011, “designat[ing] and appoint[ing]” him to serve “at the pleasure of the Special Assistant to the Mayor effective July 18, 2011.” Am. Compl. ¶ 15. Notwithstanding this clear language, McDonald contends the letter evinces a binding contract of employment because it memorialized the Mayor's “promise” to “appoint McDonald to a City job” if McDonald agreed to “resign his private sector corporate executive job, forego other employment opportunities, and work for the City.” Am. Compl. ¶ 96. McDonald offers no legal analysis or authority to support his contention that the letter was anything more than a solemnization of the power available to Hancock under the Denver City Charter. The allegations are...