Montgomery v. Board of County Com'Rs
| Decision Date | 05 June 2009 |
| Docket Number | Civil Action No. 08-cv-00108-WYD-MEH. |
| Citation | 637 F.Supp.2d 934 |
| Parties | Robert MONTGOMERY, Plaintiff, v. BOARD OF COUNTY COMMISSIONERS OF DOUGLAS COUNTY, COLORADO, a body corporate and politic; and Wesley A. Riber, in his individual capacity, Defendants. |
| Court | U.S. District Court — District of Colorado |
John A. Culver, Seth J. Benezra, Benezra & Culver, L.L.C., Lakewood, CO, for Plaintiff.
Thomas Sullivan Rice, Gillian Marie Fahlsing, Senter Goldfarb & Rice, LLC, Denver, CO, Michelle B. Whisler, Castle Rock, CO, for Defendants.
THIS MATTER is before the Court on the Defendants' Combined Motion for Summary Judgment and Memorandum Brief in Support Thereof (docket #36), filed December 31, 2008. The Defendants' motion seeks summary judgment on Plaintiff's sole claim alleging a First Amendment violation of retaliation under 42 U.S.C. § 1983. For the reasons stated below, Defendants' motion for summary judgment is denied.
This action arises from the termination of Plaintiff Robert Montgomery as the Assistant Chief Deputy Coroner of Douglas County, Colorado. Plaintiff alleges that he was terminated on May 29, 2007 in retaliation for his speaking out regarding two matters, a death investigation Plaintiff believed was a suicide cover-up and an alleged improper conflict of interest involving the Coroner, Wesley Riber ("Riber") and the Chief Deputy Coroner, Patricia Dunn ("Dunn").
By way of background and relevant to the motion before me, it is undisputed that on December 23, 2002, Riber hired the Plaintiff as an administrative assistant with the Douglas County Coroner's office. After a series of promotions, Plaintiff was promoted to the position of Assistant Chief Deputy Coroner.
On or about September 13, 2006, Riber received complaints from both the Colorado Bureau of Investigation and the Lincoln County Coroner regarding Plaintiff's conduct at the scene of a multi-jurisdictional death. Riber met with Plaintiff concerning his inappropriate conduct.
On October 23, 2006, the Douglas County Coroner's office was contacted concerning the death of Jack Acree. Coroner Investigator Carrie Fink ("Fink") investigated the death scene where it appeared that Mr. Acree may have had suicidal ideations. Dr. Galloway, the pathologist who conducts autopsies for Douglas County as an outside contractor, performed an autopsy on Mr. Acree and advised Riber that Mr. Acree died of natural causes due to heart disease. On or around November 10, 2006, Plaintiff told Fink about his suspicions that Riber may have ruled Acree's death "natural" in order to gain favor with the political community. Plaintiff spoke to Dunn and told her that he thought Acree's death should have been ruled a suicide, and he thought the level of the drug, Atenolol, in Mr. Acree's system should have been further tested. In December of 2006 Plaintiff met with Riber and Dunn about his concerns surrounding the Acree case. Plaintiff also shared his concerns about the Acree death with several employees in the Douglas County Sheriff's office. On December 5, 2006, a meeting between Sheriff's office personnel, Riber, and Dunn was held to discuss why Dr. Galloway had not quantified the level of Atenolol in Mr. Acree's system. Riber advised that his ruling on the cause and manner of death would remain natural.
With respect to Plaintiff's statements regarding an alleged improper conflict of interest, Douglas County allows smaller, more rural counties that have no autopsy facilities to use the Douglas County facilities for a charge. Dr. Galloway requests the use of trained autopsy assistants to help him perform these out-of-county autopsies. Both Riber and Dunn testified that they have assisted Dr. Galloway on several occasions with these autopsies and have personally received payment from Dr. Galloway. On three or four occasions in the year proceeding Plaintiff's termination, Plaintiff spoke with Dunn about the personal checks that she and Riber had received from Dr. Galloway in exchange for their assisting with out-of-county autopsies. It is disputed when the most recent conversation occurred.
Defendants state that sometime after January of 2007, multiple Coroner's office employees complained about Plaintiff's interactions with staff, his subordinates, his supervisory skills, and his inappropriate sharing of personnel matters. After receiving these complaints, on May 23, 2007, Riber and Laura Teague ("Teague"), the Douglas County Human Resources Department Manager, met with Plaintiff to discuss these issues. On May 29, 2007, Riber and Teague met with Plaintiff again, and Plaintiff's employment was terminated.
In his deposition, the Plaintiff testified that his job duties consisted of monitoring and overseeing investigators' work product, being a liaison between the office and the Department of Homeland Security, and attending National Institute of Justice Meetings. (Montgomery Dep. 62:13-25, June 2, 2008.) Plaintiff also stated that he had supervisory responsibilities over the investigators. (Montgomery Dep. 62:22-25.) Plaintiff further testified that he had "very little" role in death investigations "other than monitoring the investigators' work product." (Montgomery Dep. 63:1-4.) As part of his official duties, Plaintiff did investigate some deaths on his own and would occasionally work with Riber and Dunn to discuss case files and receive work product requests. (Montgomery Dep. 63:5-19.) Plaintiff stated that only Riber and Dunn had the authority to determine whether or not to conduct an autopsy. Once Riber or Dunn decided an autopsy was to be conducted, Plaintiff's duty was to call Dr. Galloway, the pathologist, to schedule the procedure. Plaintiff never provided input as to additional testing beyond what is performed at every autopsy nor consulted as to cause of death determinations. (Montgomery Dep. 63:20-66-8.)
The Douglas County Government Job Description for Assistant Chief Deputy Coroner provides in relevant part:
This is a technical and administrative position providing insight and supervision related to investigating deaths occurring within the jurisdiction of the Douglas County Coroner's office.
. . .
Advises Chief Deputy Coroner and Coroner on manpower and personnel matters. Provides review and oversight of case files, judicial filing [sic], medical reports and police and/or fire reports.
. . .
Determines when autopsies are needed.
. . .
Confers with medical, social and law enforcement agencies related to investigations. Supervises preparation of toxicological samples to be sent to laboratories.
. . .
Makes recommendations for budgeting and expenditures.
. . .
Reports directly to the Chief Deputy Coroner or Coroner.
(Exhibit A-4; Montgomery Dep. 72:15-77-24.)
In the motion for summary judgment, the Defendants assert that summary judgment should be granted on Plaintiff's claim of retaliation. Specifically, the Defendants argue that the matters Plaintiff spoke about fall within his official duties as Assistant Chief Deputy Coroner. The Defendants also state that Plaintiff failed to demonstrate any causal link between his alleged acts of speaking out and his subsequent termination. Finally, the Defendants briefly argue that Defendant Riber is entitled to the defense of qualified immunity. I address each argument in turn.
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Equal Employment Opportunity Comm. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir.2000). "When applying this standard, the court must `view the evidence and draw all reasonable inferences therefrom in the light most favorable to the party opposing summary judgment.'" Atlantic Richfield Co. v. Farm Credit Bank of Wichita, 226 F.3d 1138, 1148 (10th Cir.2000) (quotation omitted). All doubts must be resolved in favor of the existence of triable issues of fact. Boren v. Southwestern Bell Tel. Co., 933 F.2d 891, 892 (10th Cir.1991).
"The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 322-23, 106 S.Ct. 2548. "The moving party is `entitled to a judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Id. at 323, 106 S.Ct. 2548.
In Pickering v. Bd. of Education of Township High School District 205, 391 U.S. 563, 574, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the United States Supreme Court held that an employee who speaks on issues of public importance may not be dismissed from public employment. The analysis is a First Amendment issue "[t]he threshold question in assessing the free speech claim of a discharged . . . government employee is whether the employee has spoken `as a citizen upon matters of public...
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