Reussow v. Eddington, Civ. A. No. 79-K-600.

• Decision Date: 29 January 1980
• Docket Number: Civ. A. No. 79-K-600.
• Citation: 483 F. Supp. 739
• Parties: Richard C. REUSSOW, Plaintiff, v. B. J. EDDINGTON, Individually, and as Chief of Police of the Greeley, Colorado Police Department; and The City of Greeley, Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

483 F. Supp. 739

Richard C. REUSSOW, Plaintiff, v. B. J. EDDINGTON, Individually, and as Chief of Police of the Greeley, Colorado Police Department; and The City of Greeley, Colorado, Defendants.

Civ. A. No. 79-K-600.

United States District Court, D. Colorado.

January 29, 1980.

Jerry C. Daniel, Houtchens, Houtchens & Daniel, Greeley, Colo., for plaintiff.

Gregory A. Eurich, Jerome C. Ramsey, Holland & Hart, Denver, Colo., James R. Craig, Greeley, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

The above-entitled action is a civil rights suit under 42 U.S.C. § 1983 by a former municipal employee who claims that he was unlawfully terminated from his job. Defendants are the chief of police of the Greeley Police Department, and the City of Greeley, Colorado. Jurisdiction is provided by 28 U.S.C. § 1343(3). The action is before the court on defendants' motion to dismiss.

The allegations are that in June 1975, Richard C. Reussow became a member of the Greeley Police Department. After two and one-half months of training, he assumed the position of patrolman. He then completed a twelve month probationary period and became a permanent employee of the department. In January 1976, he joined the policemen's union and thereafter became involved in negotiations with the city concerning a pay raise for the policemen. In 1977, the policemen's union demanded a higher raise than the city offered and in October met to discuss the idea of circulating information criticizing the stand of the city manager and the city council on the pay raise issue. Shortly thereafter, the city circulated a memorandum through the police department which said that any city employee who became involved in the upcoming city election would be suspended or terminated from employment. Ruessow alleges that he contacted the American Civil Liberties Union, and was advised that the union was within its legal rights to proceed with the circulars. Between October 18 and October 28, 1977, he, along with other officers and their wives, distributed approximately 12,000 circulars. None of the officers were on duty or in uniform when the circulars were distributed. On October 29, Eddington ordered sergeants in the department to inform the officers that they were to desist from any political activity. Reussow alleges that he did not thereafter engage in any activity regarding the election.

After October 29, the city conducted an investigation of the officers' activities. A hearing resulted in Reussow being cleared of all charges except for violation of Section 9-14 of the Greeley Municipal Ordinances. This section states in relevant part that a city employee "shall not . . . take an active part in a . . . municipal campaign . . . or distribute pages or pamphlets, dodgers or handbills of any kind favoring or opposing any candidate for election, nomination or appointment to public office . . .." The section also provides that "any willful violation . . . shall in itself be sufficient grounds to authorize the discharge of any such classified employee." Reussow received a thirty-day suspension that was later reduced to twenty days. He fulfilled the suspension period and returned to active duty. Shortly thereafter, he was called into Eddington's office, where he was advised

that he could stay on with the Police Department if he wanted but that he would not be given the scheduled merit raise on his anniversary date, that he would not be considered for any additional schooling, that he would not be considered for any promotions regardless of eligibility, and that in general, his career with the Police Department had reached a permanent plateau.

(Complaint, at ¶ 9.) Reussow alleges that this compelled him to resign, and that he submitted his resignation on May 25, 1978.

Soon after the termination of his employment, Reussow alleges that Eddington, in his capacity as chief of police, contacted other area law enforcement agencies to which he had applied for employment and "advised them that if they wanted to continue having good relations with the Greeley Police Department they had better not hire Reussow." (Complaint, at ¶ 28.) Reussow says that except for these communications, he would have received employment. As it is, he has been unable to find employment in the law enforcement field in the area in which he lives.

Reussow complied with C.R.S., § 24-10-109 (1973) by sending a written letter of complaint to the mayor of the City of Greeley, and alleges that he received no response. Here, Reussow asserts three claims under Section 1983: (1) wrongful termination of his protected property interest in employment; (2) wrongful termination of his employment in retaliation against his exercise of a protected liberty interest in freedom of speech; and (3) defamation of character in retaliation against his exercise of a protected liberty interest in freedom of speech. He also asserts pendent state claims for breach of contract and for what is essentially a claim for tortious interference with employment opportunities. He seeks actual and punitive damages.

Defendants have moved to dismiss on three grounds: (1) that Reussow resigned and was therefore not wrongfully discharged; (2) that the city could constitutionally regulate the political activity of its employees; and (3) that defamation alone does not state a cause of action under Section 1983. Should these claims be dismissed, defendants request that the pendent state claims also be dismissed for lack of jurisdiction.

On a motion to dismiss, the allegations of fact must be viewed in the light most favorable to the plaintiff. A complaint should not be dismissed for failure to state a claim unless it clearly appears that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kennedy v. Meacham, 540 F.2d 1057 (10th Cir. 1976); and Tuggle v. Evans, 457 F.Supp. 1015 (D.Colo.1978).

I

It is fundamental that due process safeguards only apply when protected property or liberty interests are shown to exist. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); and McGhee v. Draper, 564 F.2d 902 (10th Cir. 1977). Protected property interests are more than a unilateral expectation and have their basis in state law. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Hamm v. Scott, 426 F.Supp. 950 (D.Colo. 1977). They arise where public employees hold contractual rights to continuing employment, Abeyta v. Town of Taos, 499 F.2d 323, 327 (10th Cir. 1974), or where state law creates a legitimate expectation of continued employment, as in implied agreements or administrative regulations. DeBono v. Vizas, 427 F.Supp. 905, 906 (D.Colo.1977).

Plaintiff bases his claim to a property interest on both contract and state law. Under the collective bargaining agreement between the union and the city, "every new employee hired into the bargaining unit shall serve a probationary period of twelve (12) full months, after which he may be appointed a permanent employee and granted seniority the date of that permanent employment." (Collective Bargaining Agreement, at Art. VI.) Plaintiff alleges that he completed the probationary period and became a permanent employee. As a permanent employee, the collective bargaining agreement provided that he could not be "suspended, demoted, or discharged except for just cause . . .." (Collective Bargaining Agreement, at Art. V.) In addition to these contract terms, the Greeley Municipal Ordinances at Section 9-12.1(a) list twenty-five reasons for the city manager's dismissal of a city employee,¹ and at Sections 9-12.1(b) and (c) set forth the procedures that must be followed.² Taken together, the allegations are clear that plaintiff was a permanent employee subject to discharge only on account of specific reasons and only according to certain procedures.

There is no dispute that Reussow was suspended for twenty days because of his involvement in allegedly prohibited political activity. While he apparently does not admit that this activity was improper, Reussow does not challenge this suspension. On its completion, he returned to active duty. It was only then, after he had accepted this disciplinary action — which is all that was authorized by the city government acting through and according to its municipal ordinances, that he was called into the office of the chief of police and given the bad news.

Defendants argue that procedural due process regarding termination of Reussow's employment cannot be an issue since Reussow resigned from his job. Reussow's position is that he did not resign voluntarily but was constructively discharged. This concept of "constructive discharge" has been recognized by both federal and state courts in adjudicating claimed violations of civil rights arising from employment. See, e. g., Muller v. U. S. Steel Corporation, 509 F.2d 923 (10th Cir. 1975), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975); Young v. Southwestern Savings & Loan Association, 509 F.2d 140 (5th Cir. 1975); and Colorado Civil Rights Commission v. State of Colorado, School District No. 1, 30 Colo.App. 10, 488 P.2d 83 (1971). As stated in Young v. Southwestern Savings & Loan, 509 F.2d at 144: "The general rule is that if the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable . . . as if it had formally discharged the aggrieved employee." In this case, Reussow alleges that after his return to active duty, he was called into the office of the chief of police, where it was made very clear that he would not receive his scheduled merit pay raise, that he would not receive any...