McDonald v. Miller
Decision Date | 14 May 2013 |
Docket Number | Civil Action No. 12-cv-2996-JLK |
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 |
ORDER ON DEFENDANTS' MOTION TO DISMISS (Doc. 14)
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. § 1983constitutional 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 Sates 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 AttorneyDoug 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 allegationsof 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 Oncecleared of its detritus, only a single claim under 42 U.S.C. § 1983 merits any serious scrutiny.
The obvious issues first, in summary form:
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