Merrifield v. Bd. of County Commissioners For the County of Santa Fe

• Decision Date: 25 July 2011
• Docket Number: 10–2179.,Nos. 10–2175,s. 10–2175
• Parties: Billy A. MERRIFIELD, Plaintiff–Appellant/Cross–Appellee,v.BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF SANTA FE; Roman Abeyta; Bernadette Salazar; Annabelle Romero, Defendants–Appellees/Cross–Appellants,andGreg Parrish, Defendant.
• Court: U.S. Court of Appeals — Tenth Circuit

654 F.3d 1073

32 IER Cases 972

Billy A. MERRIFIELD, Plaintiff–Appellant/Cross–Appellee,

v.BOARD OF COUNTY COMMISSIONERS FOR the COUNTY OF SANTA FE; Roman Abeyta; Bernadette Salazar; Annabelle Romero, Defendants–Appellees/Cross–Appellants,andGreg Parrish, Defendant.

Nos. 10–2175

10–2179.

United States Court of Appeals, Tenth Circuit.

July 25, 2011.

Michael Schwarz, Santa Fe, NM, for Plaintiff–Appellant/Cross–Appellee.Joel M. Young (Kevin M. Brown, with him on the briefs), Brown Law Firm, Albuquerque, NM, for Defendants–Appellees/Cross–Appellants.Before HARTZ, McKAY, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

Contending that he was improperly terminated, Billy Merrifield, a former Youth Services Administrator of Santa Fe County's Youth Development Program at the County's youth correctional facility, sued the County Board of Commissioners and several County officials (collectively, Defendants) in federal court. He brought civil-rights claims under 42 U.S.C. § 1983 alleging that he had been denied procedural due process with respect to the County's pretermination hearing and that he had been fired in retaliation for retaining an attorney, in violation of his First Amendment right of association. His complaint also brought a state-law claim requesting judicial review of the County's administrative decision affirming the firing. The United States District Court for the District of New Mexico granted summary judgment for Defendants on the federal claims, but set aside the County's administrative decision and awarded Merrifield back pay. Merrifield appeals the grant of summary judgment to Defendants and the calculation of back pay, and the County cross-appeals the setting aside of the administrative decision.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the summary judgment on the constitutional claims. Merrifield failed to show (1) that his pretermination process was constitutionally inadequate and (2) that his association with an attorney involved a matter of public concern. As for the district court's ruling on the state-law claim, we remand for dismissal without prejudice because it should be resolved in state court.

I. BACKGROUNDA. Merrifield's Termination and Administrative Appeal

In January 2007 Merrifield represented the County at a corrections conference in Florida. On the afternoon of January 22 he sent a sexually graphic image to the personal cell phone of Robert Apodaca, one of his subordinates at the youth correctional facility. Although the use of personal cell phones at the facility was prohibited, Apodaca received the image at work and displayed it to coworkers. One became upset and complained.

Merrifield was placed on administrative leave with pay on January 25. On February 22 defendant Annabelle Romero, the County's Director of Corrections, issued a letter recommending Merrifield's termination. The letter stated that an internal investigation had revealed that Merrifield had sent pornographic images to a subordinate employee via cell phone and had “participated in a sexually inappropriate environment at the facility, and participated in other improper behavior among staff at the facility.” Aplt.App., Vol. 1 at 59. It added that the investigation had also discovered “failings on [Merrifield's] part as a supervisor and improper conduct in [his] supervisory dealings with employees.” Id.

By that time Merrifield had retained an attorney to represent him and had informed the County that all communications on the matter should go through his attorney. On February 23 the attorney sent a letter to defendant Bernadette Salazar, the County's Human Resources Director, requesting that the County make a number of documents available for inspection and copying. The requested documents included “[e]ach and every policy, protocol or memorandum the County claims [Merrifield] violated,” id. at 60, and documentation of the allegations in the Romero letter.

Salazar responded in a letter dated March 5. The letter included copies of County policies on cell-phone use, sexual harassment, and the responsibilities of managers and supervisors, and it offered Merrifield's attorney the opportunity to review Merrifield's personnel file. But it denied Merrifield's request for further information and documents. It explained that both the meeting at which Merrifield had received Romero's letter and his forthcoming predisciplinary hearing afforded him the opportunity “to explore the basis for the recommendation of termination.” Id. at 63. The letter also noted that if Merrifield chose to appeal any disciplinary action taken against him, he would be entitled to a full evidentiary hearing and that “[m]uch of [his] request is geared towards preparation for such a hearing and should be sought through appropriate procedures during the appeal process.” Id. at 63–64.

Merrifield attended the March 8 pretermination hearing with his lawyer. Afterwards Salazar agreed with Romero's recommendation to terminate Merrifield's employment. Merrifield, through his attorney, appealed the recommendation to defendant Roman Abeyta, the County Manager. Abeyta rejected the appeal and terminated Merrifield in a March 21 letter. Abeyta described Merrifield's admitted sending of the cell-phone image as action displaying “poor judgment,” as “intolerable behavior,” and as “an example of the unacceptable behavior [Merrifield had] displayed in [his] capacity as the Administrator.” Id., Vol. 2 at 367. He further found that Merrifield had “participated in sending and receiving inappropriate e-mail utilizing County equipment while on County time,” id., and that he had used his County cell phone “inappropriately” by making calls that were not work-related, id. at 368.

Merrifield then invoked his right under County personnel rules to appeal the termination to a hearing officer. The hearing officer conducted a nine-day posttermination hearing in April, May, and June. On July 19, 2007, the hearing officer issued a 19–page decision affirming Merrifield's termination. She decided that she was to review Abeyta's decision under an arbitrary-and-capricious standard, rejecting Merrifield's argument that the proper standard of review was de novo. She said that discipline was justified by Merrifield's transmission and display of sexually explicit images via his cellphone and his work computer and by his contributing to an atmosphere of misuse of County computer equipment at the facility. Although she held that the County had not acted arbitrarily or capriciously in deciding that the proper discipline was termination, she said that had she “been imposing discipline ab initio [, she] ... would have demoted [Merrifield] to a non-supervisory position and ... suspended him without pay for five weeks,” id., Vol. 1 at 55 n. 2. She also ruled that Merrifield had been afforded due process, stating that “[a]s to each of the matters which I have found would support discipline, [Merrifield] was given sufficient notice that these matters were the basis for termination,” in part because “[h]e was given an opportunity to respond to these matters at the pre-termination hearing.” Id. at 55.

B. Federal District Court Proceedings

On February 4, 2008, Merrifield filed his complaint in federal district court. His later amended complaint named as defendants the Board of County Commissioners, Abeyta, Salazar, Romero, and Greg Parrish, Merrifield's supervisor. The individual County employees were sued in both their official and individual capacities. The complaint contended (1) that the County, Salazar, and Romero violated Merrifield's rights under the Due Process Clause of the Fourteenth Amendment by failing to provide adequate notice of the charges and the evidence against him before his pretermination hearing, and (2) that the County, Abeyta, Romero, and Parrish violated his First Amendment right to associate with counsel by retaliating against him for hiring an attorney to represent him in the disciplinary process. The complaint also included a supplemental state-law claim seeking review of the hearing officer's decision.

The district court ultimately granted summary judgment against Merrifield on the federal claims. It held that he had been provided due process and, after striking as inadmissible some sworn statements by former County employees, it held that Merrifield had failed to present evidence that the County had fired him because of his retention of or consultation with counsel. On the other hand, the court agreed with Merrifield that the hearing officer should have reviewed the County termination decision de novo, and it adopted the hearing officer's alternative penalty of demotion to a nonsupervisory position and a five-week suspension. The court then conducted further proceedings to assess damages and awarded Merrifield $30,866.50 in back pay. Both Merrifield and the County appealed.

II. DISCUSSION

Merrifield raises the following five issues on appeal: (1) that he was deprived of due process because he was not provided adequate notice of the charges and evidence against him before his pretermination hearing; (2) that the district court abused its discretion by striking portions of affidavits by former County employees relating to his retaliation claim; (3) that the district court erred in holding that he had not presented sufficient evidence that he was terminated in retaliation for hiring an attorney; (4) that the First Amendment protected him against retaliation by the County for his associating with an attorney regardless of whether that association involved a matter of public concern, and that, in any event, his association did involve a matter of public concern; and (5) that the reduction in pay used in the district court's damage calculation was so significant as to constitute a constructive discharge. The County cross-appeals, challenging the district court's holding that the hearing officer should have reviewed Merrifield's termination...