Roberts v. Winder

NICHOLAS J. ROBERTS, an individual, Plaintiff, v. JAMES M. WINDER, individually;ROSIE RIVERA, in her official capacitiesas the Salt Lake County Sheriff and CEO ofthe Unified Police Department of Greater Salt Lake; andTHE UNIFIED POLICE DEPARTMENT OF GREATER SALT LAKE, Defendants.

Case No. 2:17-cv-00298-DAK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH

July 13, 2020

MEMORANDUM DECISION AND ORDER

Judge Dale A. Kimball

This matter is before the court on Defendants' Motion for Summary Judgment. On July 2, 2020, the court telephonically held oral argument on the motion. Defendants were represented by R. Scott Young and Camille N. Johnson, and Plaintiff was represented by Jesse C. Trentadue and Robert W. Hughes. The court took the matter under advisement. The court considered carefully the memoranda and other materials submitted by the parties, as well as the law and facts relating to the motion. Now being fully advised, the court issues the following Memorandum Decision and Order.

BACKGROUND

In August 1996, former Salt Lake County Sheriff Aaron Kennard ("Kennard") appointed Defendant Nicholas J. Roberts ("Roberts") to the position of Range Master-Firearms Instructor ("Range Master"). After serving as the Range Master for nine years, in 2005, Roberts tested for and obtained a merit rank advancement from Deputy to Sergeant. In 2006, Defendant James M. Winder ("Winder") won the election to become the Salt Lake County Sheriff over incumbent Kennard. During that election, Winder sought the support of many of the officers in the police force, including Roberts. Roberts, however, expressed that he had already promised his support to Kennard. Nevertheless, Roberts explained that, if Winder won the election, he would support him. After winning the 2006 election, Winder took office as Salt Lake County Sheriff in 2007. Once assuming office, Winder transferred officers periodically. Although Winder initially considered transferring Roberts from the Range Master position, he did not do so; his staff looked into the possibility of a transfer, but ultimately believed that Roberts' position was a merit rank position not subject to transfer.

In 2009, merit rank lieutenants were reclassified one pay grade and received a raise. Because Roberts was not a lieutenant, he did not receive the pay raise. Yet, Roberts filed a grievance with the Merit Commission because the Range Master position was rated on the pay scale at a lieutenant-level position. Thus, Roberts believed that he was also entitled to the pay raise. In July 2009, the Merit Commission held a hearing to address Roberts' grievance. As a result of the hearing, the Merit Commission reclassified the Range Master position's pay grade, and Roberts received the raise he requested.

In 2010, Winder ran for and won reelection, and during his reelection, Roberts told Winder that he was supporting him. During that general time period, Winder oversaw the formation of the Unified Police Department of Greater Salt Lake ("UPD") and became its CEO. As Salt Lake County Sheriff and CEO of UPD, Winder supervised approximately 2,000 employees. Thereafter, Winder sought and won reelection in the 2014 election, and, again, Roberts supported him.

Eventually, in 2017, Winder made the decision to transfer Roberts from his position as Range Master to Patrol Sergeant. Roberts, however, objected to the transfer. In order to formally object, Roberts, through his counsel, wrote a letter to Winder wherein he claimed that the Range Master position was a merit rank position and not subject to transfer. Winder responded to the letter by explaining that he was construing it as a grievance. Winder denied the grievance, noting that the Range Master position was a specialist position and separate from Roberts' merit rank as Sergeant. Roberts' transfer became effective in April 2017. After Roberts' transfer, Winder assigned Todd Griffiths ("Griffiths") to manage the range. Several months later, Rosie Rivera ("Rivera") replaced Winder as Salt Lake County Sheriff and CEO of UPD.

After Roberts' transfer became effective, he quickly filed suit, alleging that his transfer was unlawful. Specifically, Roberts asserted six causes of action: (1) a request for a declaratory judgment that the Range Master position was a merit rank position; (2) violation of his procedural due process rights under the United States Constitution; (3) violation of his substantive due process rights under the United States Constitution; (4) violation of his due process rights under the Utah Constitution; (5) retaliation under 42 U.S.C. § 1983 in violation of Roberts' First Amendment free speech rights; and (6) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"). In April 2018, Defendants moved for partial summary judgment on claims 1 through 5. On August 21, 2018, the court granted Defendants' motion as to Roberts' first four claims, but denied the motion as to Roberts' retaliation claim. In granting summary judgment on Roberts' first four claims, the court determined that the Range Master position was a "specialist" position—not a merit rank position—in which Roberts lackeda constitutionally protected property interest. Accordingly, the court concluded that Roberts' transfer did not violate due process.

DISCUSSION

Defendants now move for summary judgment on Roberts' two remaining claims for retaliation and age discrimination. "Summary judgment is appropriate if the movant 'shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Roberts v. Jackson Hole Mountain Resort Corp., 884 F.3d 967, 972 (10th Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). "An issue is 'genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way. An issue of fact is 'material' if under the substantive law it is essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citation omitted). In applying this standard, the court must "view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Gutierrez v. Cobos, 841 F.3d 895, 900 (10th Cir. 2016) (quoting Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir. 2012)). Accordingly, if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," the movant's motion must be denied. Roberts, 884 F.3d at 972 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

I. Retaliation Claim

The Tenth Circuit has explained that the "First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Couch v. Bd. of Trustees of Mem'l Hosp. of Carbon Cty., 587 F.3d 1223, 1235 (10th Cir. 2009) (quoting Garcetti v. Ceballos, 547 U.S. 410, 417 (2006)). As such, "a public employer cannot retaliate against an employee for exercising his [or her] constitutionally protected right of freespeech." Id. (quoting Dill v. City of Edmond, Okla., 155 F.3d 1193, 1201 (10th Cir. 1998)). In analyzing First Amendment retaliation claims when an employer allegedly retaliates against an employee, the Tenth Circuit applies the five-prong Garcetti/Pickering test. Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir. 2014); Dixon v. Kirkpatrick, 553 F.3d 1294, 1301 (10th Cir. 2009); Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1203 (10th Cir. 2007).¹ The Garcetti/Pickering test is comprised of five elements:

(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.

Trant, 754 F.3d at 1165. Implicit in this test is the "requirement that the public employer have taken some adverse employment action against the employee." Couch, 587 F.3d at 1236 (quoting Belcher v. City of McAlester, Okla., 324 F.3d 1203, 1207 n. 4 (10th Cir. 2003)).

With regard to the second element, "[m]atters of public concern are 'those of interest to the community, whether for social, political, or other reasons.'" Brammer-Hoelter, 492 F.3d at1205 (quoting Lighton v. Univ. of Utah, 209 F.3d 1213, 1224 (10th Cir. 2000)). Indeed, matters of public concern involve "something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public." Deutsch v. Jordan, 618 F.3d 1093, 1100 (10th Cir. 2010) (quoting City of San Diego v. Roe, 543 U.S. 77, 83-84 (2004)). On the other hand, speech that merely "airs grievances of a purely personal nature typically does not involve matters of public concern." Brammer-Hoelter, 492 F.3d at 1205 (internal quotation marks omitted). In deciding whether a matter is of public concern, courts are required to consider "the content, form, and context of a given statement, as revealed by the whole record." Id. (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)).

As to the fourth element, a plaintiff bears the burden of establishing both an adverse employment action and "causation—that is, that the constitutionally protected speech was a substantial motivating factor in the employer's decision to adversely alter the employee's conditions of employment." Couch, 587 F.3d at 1236. The Tenth Circuit has defined an adverse employment action in the First Amendment retaliation context as something that would "deter a reasonable person from exercising his or her First Amendment rights." Lincoln v. Maketa, 880 F.3d 533, 540 (10th Cir. 2018). In regards to causation, relevant evidence may...