MARCIA S. KRIEGER, District Judge.
The following is a brief summary of the pertinent facts, construed most favorably to Mr. Cillo. Further elaboration will be provided as necessary to the analysis.
Mr. Cillo was employed as a police officer for the City of Greenwood Village. The police department is overseen by it's Chief, Mr. Perry, who is assisted by Mr. Harvey, one of Mr. Perry's Lieutenants. Mr. Sanderson, as City Manager of Greenwood Village, has appellate review of termination decisions involving police officers.
In 2007, Mr. Cillo began attempting to organize his fellow police officers into a union. By August, the union had been organized and Mr. Cillo had been elected to serve as President of International Union of Police Associations ("IUPA") Local 305, the Plaintiff in this matter. He contends that thereafter, the Defendants discriminated against him for his union activities, such as by stripping him of work assignments and denying him opportunities to attend training programs.
In June 2009, Mr. Cillo was involved in a situation in which officers under his supervision unlawfully entered a motel room and arrested a suspect (the "Motel 6 incident"). Following the incident, the police department sought the termination of Mr. Cillo and certain other officers who were involved, contending that the officers' actions during the motel incident violated the arrestee's Fourth Amendment rights and police department policies. Mr. Cillo's employment was terminated, and he was unsuccessful in his appeal of the termination
The Plaintiffs (which include Mr. Cillo and the IUPA itself) assert three causes of action: (i) a claim, brought by both Mr. Cillo and the IUPA,
The Defendants have moved
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir.2002).
If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed.R.Civ.P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence of sufficient evidence to establish
To establish a claim for unlawful retaliation against a public employee based on that employee's exercise of First Amendment rights, the employee must make a prima facie showing: (i) that he engaged in constitutionally-protected First Amendment activity; (ii) that the defendant took an adverse action against him that would chill a person of ordinary firmness from continuing to engage in that activity; and (iii) that the adverse action was substantially motivated by the employee's protected activity. Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
When the government is acting in its capacity as employer, rather than its capacity as sovereign, it enjoys a broader ability to regulate the speech and conduct of employees than it would have in regulating speech or conduct by private citizens. See generally Waters v. Churchill, 511 U.S. 661, 671-72, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) ("the government as employer indeed has far broader powers than does the government as sovereign"). In attempting to strike a balance between the government's need (as an employer) to efficiently manage its workforce and the public worker's right (as a citizen) to invoke his or her First Amendment right to speak out on matters of public importance, the U.S. Supreme Court in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), held that a public employee who speaks out on a matter of public concern enjoys the full protection of the First Amendment against retaliation in the employment sphere. In Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), the Supreme Court explored the converse situation, concluding that where a public employee's speech "cannot be fairly characterized as constituting speech on a matter of public concern ... government officials should enjoy wide latitude in managing their offices," such that "a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior."
Although identifying the Connick "public concern" test is simple, applying it is not necessarily so. Indeed, determining whether the test applies to the facts presented here is a particularly knotty question.
The first difficulty in determining whether the Connick test applies turns on whether the alleged First Amendment right exercised by the public employee is a right of speech or a right of association. Here, Mr. Cillo frames his claim as Defendants' retaliation based on his association with others as members of a union.
Until recently, the question of whether Connick's "public concern" test applied in cases founded on associational rights resulted in varying conclusions in the Circuit Courts of Appeal. The 10th Circuit repeatedly declined to announce a position. However, in 2011, in the decision in Merrifield v. Board of County Commissioners, 654 F.3d 1073, 1080 (10th Cir.2011), the
Merrifield involved a public employee who claimed he was retaliated against after hiring a lawyer to represent him in an appeal of a disciplinary decision. The 10th Circuit began its analysis by noting two distinct types of associational rights protected by the First Amendment: (i) the "intrinsic" right to "enter into and maintain certain intimate human relationships"; and (ii) the "instrumental" right to associate for the purpose of engaging in other First Amendment rights such as speech, assembly, and petitioning the government. Id. at 1080-81. It characterized an employee's right to associate with a lawyer as an "instrumental" right, and held that "the public-concern requirement applies to a claim that a government employer retaliated against an employee for exercising the instrumental right of freedom of association for the purpose of engaging in speech, assembly, or petitioning the government." Id. at 1081-82. It reasoned that associational rights should not be treated differently from the substantive First Amendment rights that the association was intended to promote. Thus, it would be incongruous to require employees to satisfy the "public concern" test when they claimed to have been retaliated against for engaging in speech, assembly, or petitioning the government, but excuse them from that showing when they associated for the purpose of engaging in that same speech, assembly, or petitioning. Id. at 1083.
Mr. Cillo's associational claims are of the same "instrumental" character as those of the employee in Merrifield. Mr. Cillo associated with his fellow officers as members of a union for the purpose of enhancing his ability to speak to issues concerning working conditions, or to petition for redress of grievances. Thus, under Merrifield, Mr. Cillo is required to demonstrate that his associational activities satisfy the Connick "public concern" test.
Finding that Mr. Cillo asserts an instrumental associational right subject to the Connick test is not the end of the inquiry, however. There is another question yet to address — whether the 10th Circuit has recognized a special exception to the Connick test where the associational activity is related to organization or membership in a union. This issue requires a historical survey of 10th Circuit precedent on the point.
The first significant case is Morfin v. Albuquerque Public Schools, 906 F.2d 1434 (10th Cir.1990). There, teachers alleged that they were subjected to retaliation for, among other things, speaking out over disagreements with management, meeting with union officials, and filing union grievances. Affirming the trial court's denial of summary judgment in favor of certain management employees, the court began with the proposition that "the First Amendment protects the right of a public employee to join and participate in a labor union," a right to file grievances, and a right to "associate with the union of his or her choice, even one other than the exclusive bargaining agent." Id. at 1438, 1439 (internal quotes omitted). But because the issue before the court arose on the assertion of qualified immunity, the analysis in Morfin concerned whether these rights were "clearly established." Thus, the court was not called upon to address whether employees were required to demonstrate that their union association furthered a public concern (i.e. that they satisfied
Next, Butcher v. City of McAlester, 956 F.2d 973 (10th Cir.1992), contains dicta addressing public employee rights to participate in a union, but does not squarely resolve whether there is or is not an exception to the Connick test where the protected activity involves participation in a union. In Butcher, public employees complained that their employer singled them out for harassment and discipline because of their involvement in a local union. After a jury returned a verdict in the employees' favor, the employer sought judgment as a matter of law on associational claims, but the motion was denied by the trial court. On appeal, the employer argued that the trial court erred in applying a test that required balancing the employer's legitimate interests in managing its workforce against the employees' First Amendment rights.
The issue became sharper in King v. Downing, 58 Fed.Appx. 830, 833 (10th Cir.2003) (unpublished). There, the court affirmed entry of summary judgment against a public employee who claimed retaliation based on his efforts to form a union, in part, because the employee did not show that his union association was furthering a matter of public concern. In his appeal, the employee apparently conceded that his union activities did not implicate matters of public concern, but argued that "the district court erred in applying the [] Connick `public concern'... test to this claim" because he alleged that "his First Amendment associational rights as well as his free speech rights" had been infringed. Id. at 833. The court acknowledged that the "public concern" test "may not be a precise enough tool of analysis in some public employee/free association contexts," but nevertheless concluded that "where the free speech and free association claims are identical, as they are in this case, application of the [] Connick public concern test is appropriate."
The issue became even more focused in Shrum v. City of Coweta, 449 F.3d 1132, 1138 (10th Cir.2006). There, a police officer contended that he had been disciplined and assigned less favorable shifts in retaliation for serving as bargaining agent for the police officers' union. Id. at 1138. In Shrum, the question of whether the officer had to satisfy the "public concern" test was directly considered by the court. The 10th Circuit briefly noted that neither it
Id. at 1139. In instructing the trial court on remand, the 10th Circuit stated "the district court should [not] require `public concern' ... The City of Cowetta already balanced [that] interest[] when it agreed to a collective bargaining agreement. The Defendants are estopped from reneging on this agreement ... by claiming that union association is not a matter of public concern." Id.
The Court pauses here to consider the import of Shrum. Shrum appears to announce a categorical rule that the "public concern" test should not be applied when a public employee asserts retaliation for his association with a union. But it appears that the rule is premised upon the finding that employer has entered into a collective bargaining agreement with the union. This suggests that the court either: (i) believed that by entering into such an agreement, the public employer had somehow acknowledged that the union's activities are of public concern and therefore it is "estopped" from contending otherwise, or (ii) the court conflated the Pickering balancing and the Connick "public concern" test.
Without claiming to have unraveled the mystery, this Court observes that Shrum's exception — that associational claims based on union activities need not demonstrate public concern under Connick — depends upon the employer having recognized the union and entered into a collective bargaining agreement with it. Indeed, the court "emphasize[s] the self-imposed nature of the collective-bargaining agreement," making clear that any estoppel effect arises from the fact that the employer "negotiated with an employee union and signed a collective-bargaining agreement," and that the City had abandoned any right to invoke the "public concern" issue "when it agreed to a collective bargaining agreement." Thus, to the extent Shrum dispenses with the Connick "public concern" test in situations involving association for purposes of union activity, this Court is prepared to say that it does so only in circumstances where the public employer has recognized and entered into a collective bargaining agreement with the union.
Finally, this sets the stage for a return to the recent decision in Merrifield. As discussed previously, Merrifield sets forth a general rule that claims based on functional association rights require the employee to prove that the association furthered issues of public concern. Merrifield expressly rejected the employee's contention that "Tenth Circuit precedent requires rejection of the public-concern requirement in this context." In doing so, the court referred to Butcher and Morfin, but found them inapposite as they did not "discuss whether the public-concern requirement would apply to association-based retaliation claims." Id. at 1084. As the discussion above makes clear, this observation is correct.
Then, Merrifield addresses the court's reasoning in Shrum. It uses Shrum to illustrate that "for some time we have recognized that the issue we are deciding today [that is, application of the "public concern" test in associational cases] has been open in this circuit." Id. at 1084. But it also notes that in Shrum, "in the specific context of public-employee labor unions, we have rejected the requirement that a worker demonstrate that his association with the union be a matter of public concern." Id.
As stated above, the Court understands Shrum to eliminate the "public concern" test only with regard to associational
Having now completed its survey of precedent, the Court returns to the question that prompted it: if the general rule of Merrifield requires an employee to prove that his association furthered a public concern, is there a special exception when the associational activity is to organize or assist a union? The preceding discussion should make clear that the answer to that question is, due to Shrum, "yes, but only where a collective bargaining agreement is in place."
Admittedly, at least one judge of this Court has reached a contrary conclusion. In Blangsted v. Snowmass-Wildcat Fire Protection Dist., 2008 WL 4411440 (D.Colo. Sept. 16, 2008) (slip op.), Judge Miller addressed facts similar to those presented here — a public employee alleged that he suffered retaliation for associational activities on behalf of a union, but no collective bargaining agreement was in place. Addressing a claim of qualified immunity, Judge Miller noted that "there does ... remain a question as to whether the first Pickering element, matter of public concern, applies in freedom of association cases" (citing Shrum), and "relatedly, [a question of] whether an activity meets the public concern element merely because it is union related" (citing King). Judge Miller noted the fact that the First Amendment protects the right of a public employee to join a union, citing Morfin, and acknowledged that the exception set forth in Shrum was limited to cases where collective bargaining agreements were in place. Nevertheless, he found that "the right to engage in activity of organizing a union is itself protected by the First Amendment without the necessity of a court determination that any particular activity of that union is a matter of public concern," citing to both Shrum and a passage in Morfin that acknowledged that First Amendment's association right protects an employee's right to join a union. Judge Miller was particularly reluctant to engage in a public concern analysis, believing that this "would inevitably require a determination of the worth of a particular union [and] whether [the court] view[s] the union as `good' or `bad.'" He rejected the employer's argument that King was dispositive, finding King to be factually distinguishable because there, the employee's bringing of identical speech and associational claims warranted "the full Pickering analysis." Thus, he concluded that the "the right to participate in a union was clearly established" and the employer was not entitled to qualified immunity.
Although this Court respects the analysis of Judge Miller in Blangsted, it is compelled to disagree.
The reasoning of Blangsted would also conflict with Merrifield's holding that although association with an attorney can be protected as a First Amendment right, the employee nevertheless still had to demonstrate that such association also served a public concern. 654 F.3d at 1081. In addition, the reasoning of Blangsted would eliminate the need for and the limitation of Shrum. Finally, the reasoning of Blangsted ignores the observation in King that union activities do not, simply because they involve a union, inherently satisfy the "public concern" standard. 58 Fed.Appx. at 833 n. 1.
Ultimately, this Court concludes that Mr. Cillo, and any public employee asserting an associational claim premised upon union activity — at least union activity that has not resulted in a collective bargaining agreement — must satisfy the "public concern" test for largely the same basic rationale as that stated in Merrifield. The central premise of that decision is that the First Amendment analysis applied to associational rights should be roughly congruent with the First Amendment analysis that would apply to the acts that association was intended to permit. 654 F.3d at 1082-83. Had Mr. Cillo simply walked into the Command Staff's office by himself and demanded higher pay or a change in promotional procedures and suffered retaliation as a result, the Connick "public concern" test would indisputably apply to his retaliation claim. There is no reason why it should not similarly apply when Mr. Cillo associates with others in order to achieve the same result.
A matter is one of public concern where it relates to "any matter of political, social, or other concern to the community"; that notion is juxtaposed with an action that is "only of personal interest" to the employee. Connick, 461 U.S. at 146-47, 103 S.Ct. 1684. This assessment must be made "by the content, form, and context" of the activity in question. Id. at 147-48, 103 S.Ct. 1684. Matters of public concern are those that are "subject[s] of legitimate news interest; that is a subject of general interest and of value and concern to the public." City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004). The Court focuses on the motive of the actor in an attempt to determine whether the association was "calculated to redress personal grievances or whether it had a broader public purpose," such as "sufficiently inform[ing] the issue as to be helpful to the public in evaluating the conduct of government." Gardetto v. Mason, 100 F.3d 803, 812 (10th Cir.1996); see also Craven v. Univ. of Colorado Hosp. Auth., 260 F.3d 1218, 1226-27 (10th Cir.2001) ("[i]n deciding whether a particular statement involves a matter of public concern, the fundamental inquiry is whether the plaintiff speaks as an employee or as a citizen"). Thus, "speech pertaining to internal personnel disputes and working conditions ordinarily will not involve public concern," whereas "speech that seeks to expose improper operations of the government or questions the integrity of governmental officials" does. Id.
Most importantly, however, the question of whether the employee's speech or association bears on a matter of public concern is assessed from the perspective of the
The Court need not extensively review the evidence in the record on this point. Deposition testimony from Mr. Harvey and Mr. Perry, officials in the police department, indicates that they understood that the IUPA's goals (and thus Mr. Cillo's goals in associating with others to form the IUPA) included, among other things, seeking raises and increased benefits to police officers to more closely match wages and benefits in nearby jurisdictions and a request that police officers be allowed to engage in collective bargaining.
This Court concludes that issues of pay parity with nearby jurisdictions and the question of whether public employees
Accordingly, the Court finds that he has demonstrated a genuine dispute of fact with regard to the first element of a § 1983 retaliation claim.
Initially, Mr. Cillo appeared to allege that he was subjected to a variety of adverse employment actions, including removal of certain job assignments and "rotations" to less-desirable working groups. However, as the Court reads his summary judgment response, Mr. Cillo has disclaimed any intention of alleging that those incidents constitute separately-actionable adverse employment actions. Docket # 41 at 46 ("The only adverse action for which Sgt. Cillo seeks a remedy is the illegal termination of his employment"; the other events "are simply examples of discriminatory actions taken by Defendants that support an inference that his termination was motived" by anti-union bias). Thus, the Court finds that Mr. Cillo has identified a single adverse employment action he claims to have suffered as a result of retaliation — his termination from employment.
Mr. Cillo next has the burden of demonstrating that the Defendants' decision to terminate him was "substantially motivated" by his association with the union.
When the element of substantial motivation arises, as it does here, on a summary judgment motion that simultaneously invokes the doctrine of qualified immunity, the Tenth Circuit has provided a modified analytical approach to be used. McCook v. Spriner School Dist., 44 Fed.Appx. 896, 905-06 & n. 5 (10th Cir.2002) (unpublished), citing Gehl Group v. Koby, 63 F.3d 1528, 1534 (10th Cir.1995). First, the Defendants must make a prima facie showing of the objective reasonableness of the challenged conduct, and then Mr. Cillo has the burden of presenting evidence that the Defendants "acted on the basis of a culpable state of mind." Id.
The basic factual contours of the event that led to Mr. Cillo's termination are not in particular dispute. On June 9, 2009, several Greenwood Village police officers were summoned to a Motel 6 to investigate a claimed sexual assault. Mr. Cillo and another officer, Sgt. Wrobleski, were the ranking officers on the scene. The victim was no longer at the scene, but it was believed that the suspects were hiding in their motel room, and one of them was believed to be in possession of a handgun. Officers, including Mr. Cillo and Sgt. Wroblewski, assembled outside that room. They knocked on the door but received no response. One of the officers obtained a
After the event, Mr. Harvey conducted an investigation of the event, reviewing reports and speaking to all of the officers involved. During his meeting with Mr. Harvey, Mr. Cillo acknowledged that, as the most experienced officer on the scene, he considered himself to be in command. He conceded that it was contrary to police training to obtain a passkey in order to enter a hotel room (although he contended to Mr. Harvey that he did not believe the suspects had standing to object to the entry because they were not the ones who had initially rented the room). In general, Mr. Cillo acknowledged that mistakes had been made in the incident (including his own mistakes in various aspects as supervising officer).
At the conclusion of that investigation, Mr. Harvey recommended that all of the officers involved receive some form of discipline. With regard to Mr. Cillo and Sgt. Wroblewski, Mr. Harvey found them both to be ultimately responsible for the mistakes made in the incident and, worried about potential negligent supervision claims in the future, recommended that they both be terminated. He also recommended termination of the officer who attempted to enter with the passkey and used his weapon to subdue one of the suspects, as well as for another officer involved in the initial entry. He recommended that two other officers be put on "decision making leave" until they agreed to "sign a Letter of Last Chance" in order to preserve their employment, and he recommended that four others be given lesser forms of discipline.
Mr. Perry received Mr. Harvey's recommendation and discussed it with other members of the Command Staff. Although some members of management thought that termination was too severe for Mr. Cillo, given his experience, disciplinary record, and acceptance of responsibility, Mr. Perry ultimately adopted Mr. Harvey's recommendation and gave Mr. Cillo notice that the department would be seeking his termination. Mr. Cillo appeared at a pre-termination hearing and supplied a written statement. Although the statement alleges that other instances of comparable misconduct by other officers did not result in termination, it does not make any allegations of anti-union animus. After the hearing, Mr. Perry concluded that termination was appropriate and discharged Mr. Cillo. Mr. Cillo filed a prompt appeal and, now represented by counsel, raised for the first time a contention that his termination was the result of retaliation for his union activity. Mr. Cillo's appeal was heard by Mr. Sanderson, as City Manager of Greenwood Village, but Mr. Sanderson concurred in the decision, thus rendering it final.
On these facts, the Court finds that the Defendants have carried their burden of demonstrating a prima facie
The Court then turns to the question of whether Mr. Cillo can carry his burden of coming forward with facts that would show that the Defendants acted with an intent to retaliate against Mr. Cillo because of his union activities. The parties have addressed this issue in extensive factual detail. This Court will not endeavor to discuss each factual contention, much less the parties' many arguments over whether a given contention is disputed or what its significance is.
The crux of the matter is that Mr. Cillo has not come forward with any facts suggesting any particular anti-union
Mr. Cillo also draws inferences from what he contends is disparate discipline that was administered more harshly against union members than against non-union members. Certainly, proof that an employer imposed discipline more harshly against one group than another can be circumstantial evidence of a discriminatory or retaliatory motive, but that inference is available only where the situations are genuinely comparable — that is, where the situations involved the same supervisor, occurred under the same standards of performance and discipline, and involved conduct of comparable seriousness. Lollis v. City of Eufaula, 249 Fed.Appx. 20, 26 (10th Cir.2007) (unpublished), citing McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir.2006); EEOC v. PVNF, LLC, 487 F.3d 790, 801 (10th Cir.2007).
In this sense, Mr. Cillo gains little from contending that, with regard to the Motel 6 incident, Officer Williams, the only non-member of the union, received lighter discipline.
Mr. Cillo also argues that the department did not administer such harsh discipline in prior situations in which police officers committed conduct amounting to Fourth Amendment violations. The Court will not recite these instances in particular detail, as it finds all of them unavailing. Some, such as an incident with Mr. Wroblewski occurring in 2006, are inapposite both because of their age (the 2006 incident occurred prior to Mr. Harvey and Mr. Perry occupying their current management positions, although Mr. Perry, then a Lieutenant, did write up Mr. Wroblewski for the incident and submit that report to his superiors). Moreover, to the extent that the circumstances of each of these events are even discernable from the record, all of them are inapposite because of their lack of similarity to the Motel 6 incident. For example, the 2006 incident involving Mr. Wroblewski apparently involved Mr. Wroblewski getting involved
Finally, Mr. Cillo points to various other situations in which the Defendants transferred him into less-prestigious assignments after he began his union activities as evidence of their animus. Mr. Perry has submitted an affidavit stating that the purpose of these transfers was to broaden Mr. Cillo's areas of experience in order to make him more suitable for promotion and to expose other officers to the assignments previously held by Mr. Cillo. (Mr. Cillo's response is somewhat cagey in stating that the transfers "may or may not have [had] that effect" and he borders on misstating the record when he points to Mr. Perry's deposition testimony as supporting the contention that he "was not rotated to Detectives in order to make him more promotable."
Accordingly, the Court finds that Mr. Cillo has not come forward with evidence that creates a genuine issue of fact as to whether the Defendants' decision to terminate him was motivated by animus against him for associating with the union. Accordingly, the Defendants are entitled to summary judgment on his § 1983 claim. The Court need not reach the parties' remaining arguments on this claim.
From its review of the parties' submissions, it appears to the Court that Mr. Cillo's remaining claims — violation of the Colorado statute prohibiting discrimination based on an employee's off-duty activities and tortious interference with contract — depend on the premise that Mr. Cillo's
Finally, the Court turns to the parties' motions to restrict access
The Supreme Court acknowledged a common-law right of access to judicial records in Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978). This right is premised upon the recognition that public monitoring of the courts fosters important values such as respect for the legal system. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir.2002). Judges have a responsibility to avoid secrecy in court proceedings because "secret court proceedings are anathema to a free society." M.M. v. Zavaras, 939 F.Supp. 799, 801 (D.Colo.1996). There is a presumption that documents essential to the judicial process are to be available to the public, but public access may be restricted when the public's right of access is outweighed by interests that favor nondisclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir.1997). It is within the district court's discretion to determine whether a particular court document should be restricted. See Nixon, 435 U.S at 599, 98 S.Ct. 1306. The public interest is particularly significant where the materials for which restriction is sought are fundamental to the Court's decision-making process, as it is critical that the public be able to review the factual basis of this Court's decisions and evaluate the Court's rationale so that it may be confident that the Court is functioning as a neutral arbiter. McVeigh, 119 F.3d at 814.
At the same time, the Court observes that the parties have apparently chosen to err on the side of over-inclusiveness, rather than under-, in presenting their arguments, and as a result, the briefs and exhibits discuss many employee names and incidents of discipline whose relevance or probative value to the issues presented here are remote. Incidents in which employees were disciplined for engaging in sexual harassment or verbally abusing citizens, among other things, are clearly inapposite to the type of misconduct at issue here, and are of such remote relevance (if relevant at all) to the issues in dispute that they should probably never have been included in the briefing in the first place. Nevertheless, that material appears in the record and the briefs, and the Court is not inclined to restrict public access to motion papers simply because the parties have chosen to include such material within it.
The parties have presented the Court with an "all-or-nothing" choice regarding restricting access to the motion papers. Although their motions to restrict access address the unsuitability of redaction as an alternative, they have not addressed other possibilities expressly discussed in Local Rule 7.2(B)(4). That is unfortunate. The rule was drafted to expressly prompt the parties to consider a wide range of approaches to dealing with sensitive material, in the hopes that motions seeking to restrict access would be rare. Here, counsel who recognized the strong public interest afoot here might have avoided identifying certain non-party employees and their disciplinary records through a variety of techniques, including the use of pseudonyms, stipulations as to undisputed facts, summarization of records and deposition transcripts instead of submission of the originals, etc. The Court readily recognizes that creative attempts by parties to ameliorate the need for motions to restrict access are time-consuming, require negotiation, and seem burdensome when the parties are in agreement that restriction is faster and easier. Nevertheless, it is the Court's experience that parties tend to inherently undervalue the public's interest in access to judicial records and thus, undervalue the salutary effect of making such efforts.
Accordingly, the Court finds that the bulk of the parties' submissions are such that the public interest in access outweighs any private interest in confidentiality, and for that reason, the motions to restrict access are denied. Although the Court finds that some of the exhibits and references in the briefing involve matters where
For the foregoing reasons, the Defendants' Motion for Summary Judgment
The passage from Shrum quoted above appears to merge the first two components — the Connick "public concern" test and the Pickering balancing of employer vs. employee interests. The bulk of the quoted passage suggests that, by entering into a collective bargaining agreement with the union, an employer can be viewed to have conceded the Pickering balance as to union activities. In other words, once the employer recognizes and bargains with the union, it is deemed to have admitted that its interest in being able to squelch union activity in order to maintain efficient operations is subordinate to the employees' ability to participate in union activities (e.g. to enforce the terms of the collective bargaining agreement). If the quoted passage from Shrum limited itself to finding that union activity in a collective bargaining environment always survived the Pickering balancing, it might avoid criticism.
But as the first sentence of the quoted passage implies, the court was apparently finding that entry into a collective bargaining agreement also conceded the Connick "public concern" showing. (To the extent that one might read the first sentence of the quoted passage as an inelegant transition into a discussion of only the Pickering balancing or mere surplusage, the instruction to the trial court on remand makes clear that it is not to reconsider the "public concern" question. Id. at 1139.) Shrum does not explain why the Court believed that collective bargaining activities necessarily implicated issues of public concern; indeed, such notion is contrary to King, in which the court had expressly noted that "an employee's speech or activity does not touch on a matter of public concern merely because it is union-related." 58 Fed.Appx. at 833 n. 1.
This Court's reservations are more practical, recognizing the difficulties in how proof of the purposes underlying an employee's union activities can be had. Indeed, such an examination would seem to promise potentially conflicting results. Imagine two public employees, identical in every respect, are terminated for having agreed to join a union. If the first employee's motivations for joining the union were purely private, while the second employee's motivations were motivated by concerns shared with the general public, only the latter would have an actionable claim.
Although the Court is concerned in the abstract about how the "public concern" test could be applied to issues such as an employee's motivations for engaging in union activity, such concerns do not give it license to disregard what appear to be the clear teachings of cases like Connick, Merrifield, and Shrum. To the extent that the current analytical paradigm is impractical or ineffective, it is not within this Court's power to dictate a different one.
Mr. Cillo cites to the affidavit as evidence of Mr. Sanderson and Mr. Perry's anti-union animus. Admittedly, if one engages in what the Court refers to as "reasoning backwards" (students of logic might know the practice as the fallacy of "begging the question") — that is, starting with a conclusion that Mr. Sanderson and Mr. Perry harbored anti-union animus and then examining whether one could conceive of a scenario that would fit the facts to that conclusion, one might infer that Mr. Sanderson and Mr. Perry threatened Mr. Harvey's prospects for promotion if he decided to join the union.
But when one reasons forwards, evaluating the evidence objectively and drawing reasonable inferences from it, one cannot reach that same conclusion without engaging in an undue amount of speculation. The evidence simply demonstrates that Mr. Harvey was indecisive about whether he should join the union, he sought counsel from Mr. Sanderson and Mr. Perry, and that counsel (the contents of which we know nothing about) led Mr. Harvey to decide not to join the union. One could speculate endlessly about what the conversation entailed — possibly threats, but also possibly an objective discussion of the substantive merits of the union's positions on issues; discussion of concerns (or even petty ridicule) about the personality traits of union organizers and supporters (e.g. "I don't think X, the treasurer, is trustworthy," or "Y, the secretary, has a problem with jealousy and is likely to use his office to pursue personal vendettas") that might reflect poorly on other union members; genuine belief in rumors or propaganda that had cast the union in a bad light; discussion of a shared belief that
The first item is a paragraph of Mr. Harvey's affidavit, which states that Mr. Harvey eventually learned of Mr. Williams' non-affiliation with the union "through the course of this litigation."
The second item is Mr. Williams' deposition, in which Mr. Williams responded to a question of whether
The third item is Mr. Cillo's own affidavit, in which he states only that "Lt. Harvey and Ofc. Matt Williams had a close relationship" and that they spoke to each other often.
On this record, the Court cannot say that Mr. Cillo has demonstrated a genuine dispute of fact as to whether Mr. Harvey was even aware of Mr. Williams' affiliation or non-affiliation with the union at the time he recommended discipline for the Motel 6 incident.
