William J. Martinez, United States District Judge.
Plaintiffs Maria Chavez, Chelsa Parsons, and Nicole Garner bring this lawsuit against the Board of County Commissioners of Lake County, Colorado ("Lake County" or "County"), the Lake County Sheriff's Office ("Sheriff's Office"), former Lake County Sheriff Rodney Fenske ("Sheriff Fenske"), former Lake County Undersheriff Fernando Mendoza ("Undersheriff
Currently before the Court is Lake County's Motion to Dismiss Plaintiffs' Amended Complaint and Jury Demand Pursuant to Fed. R. Civ. P 12(b)(6). (ECF No. 20.) For the reasons explained below, the motion is denied.
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for "failure to state a claim upon which relief can be granted." The 12(b)(6) standard requires the Court to "assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is "whether the complaint contains `enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Granting a motion to dismiss "is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). "Thus, `a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
The Court accepts the following as true for purposes of Lake County's motion.
Plaintiffs worked as dispatchers at the Sheriff's Office until their departures in November 2017 (Chavez and Garner) and October 2018 (Parsons). (¶¶ 3-5.)
In October 2017, Plaintiff Garner complained to a sheriff's deputy, who then relayed Garner's accusations to a Lake County deputy district attorney. (¶¶ 40-41.) The district attorney's office opened an investigation into Mendoza's conduct, and the County hired a law firm, Lyons Gaddis Kahn Hall Jeffers Dworak & Grant, P.C. ("Lyons Gaddis"), to conduct a separate investigation into Garner's complaint. (¶¶ 42-43.)
Plaintiffs remained employed at the Sheriff's Office, and specifically working alongside Undersheriff Mendoza, during the two investigations. (¶¶ 46-47.) They found the situation stressful. (¶ 48.) In a conversation with Plaintiff Chavez, Lake County's director of human resources, Whittney Smyth-Smith, conceded that Chavez was "understandingly, nervous"
The situation soon became even more stressful. In retaliation against Plaintiffs, Sheriff Fenske "informed the entire Sheriff's Office staff that the `solution' to the sexual harassment complaints was for everyone to avoid the dispatch area, where [Plaintiffs] worked, essentially alienating them." (¶ 58.) As a result, "no one was available to cover the phones for [Plaintiffs] in their absence. It became virtually impossible for [them] to step away from their desks for any amount of time, even to use the restroom." (¶ 59.) Then Plaintiffs' supervisor, Hammer, "sent an email to the entire office staff that the office water cooler, coffee machine, and refrigerator would be removed from the dispatch area." (¶ 60.) This effectively "deprived [Plaintiffs] of food and drink during their shifts, because they could not leave the dispatch office in case the phone rang." (¶ 61.) Sheriff Fenske also arranged for constant video surveillance of the dispatch office. (¶ 63.)
On November 7, 2017, Plaintiffs gave interviews to the news media about the situation, which were broadcast on television and the Internet that same day. (¶¶ 67-68.) One week later (November 14), Chavez resigned due to the treatment to which she was being subjected. (¶ 69.) Undersheriff Mendoza resigned or was terminated (Plaintiffs do not specify which) on November 20, 2017. (¶¶ 9, 44.) On November 28, Garner resigned, like Chavez, on account of the treatment she had received since the investigation began. (¶ 71.)
In December 2017, a Lake County grand jury indicted Undersheriff Mendoza on seven charges, including two counts of second-degree official misconduct related to the sexual harassment of Plaintiffs. (¶¶ 11(f), 12.) The other five counts mostly related to sexual exploitation of his stepdaughter, which the prosecutors discovered because the stepdaughter learned of Plaintiffs' complaint against her stepfather and felt emboldened to speak out about his abuse at home. (¶¶ 11(a)-(e), 15, 93.)
Parsons left the Sheriff's Office in October 2018 (¶ 5), but Plaintiffs allege nothing about the circumstances of her departure.
In November 2018, non-party Amy Reyes was elected as the new sheriff of Lake County and "expressed a willingness to rehire Plaintiffs." (¶¶ 74-75.) In December 2018, Undersheriff Mendoza stood trial on the sexual misconduct charges relating to his stepdaughter (the misconduct charges relating to Plaintiffs were severed), and the jury convicted him on two counts, including one felony count. (¶¶ 90-91.) Later the same month, Plaintiffs filed this lawsuit. (ECF No. 1.)
On January 4, 2019, Reyes "heard back" from the County's human resources department "that the County would not hire any of the Plaintiffs until [this] lawsuit is over." (¶ 76.)
Reyes was sworn in as Sheriff on January 7, 2019. (¶ 80.) That day, she gave a television interview and expressed her desire "to clean up the Sheriff's Office." (¶¶ 80, 85.) Whatever these clean-up efforts entailed, she "was prevented by the County from [carrying them out] for several more weeks." (¶ 85.)
Plaintiffs bring four causes of action against Lake County:
(ECF No. 7 at 17-25.)
Lake County first challenges "the Plaintiffs' 42 U.S.C. § 1983 claim" (apparently overlooking that there are two of them), and then attacks "[a]ll claims brought against [the County] pursuant to Title VII." (ECF No. 20 at 6.) The Court will address these arguments in turn.
Section 1983 imposes liability on
42 U.S.C. § 1983. The Supreme Court held in Monell v. Department of Social Services that "person," as used in this statute, includes "municipalities and other local government units," more specifically, "local government units which are not considered part of the State for Eleventh Amendment purposes." 436 U.S. 658, 691 & n.54, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
However, a local government unit can be liable for damages under 42 U.S.C. § 1983 only when the its "policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [constitutional] injury." Id. at 694, 98 S.Ct. 2018. The Supreme Court has thus "required a plaintiff seeking to impose liability on a municipality under § 1983 to identify a municipal `policy' or `custom' that caused the plaintiff's injury," thereby "ensur[ing] that a municipality is held liable only for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality," rather than holding the municipality liable simply because it employed a constitutional wrongdoer. Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403-04, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) ("Bryan County").
The relevant policy or custom can take several forms, including:
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (internal quotation marks omitted; alterations incorporated). But, whatever species of policy or custom is alleged,
Bryan County, 520 U.S. at 404, 117 S.Ct. 1382 (emphasis in original).
Claim 2 alleges that the sexual harassment Plaintiffs experienced at the Sheriff's Office was a form of sexual discrimination prohibited by the Equal Protection Clause of the Fourteenth Amendment. (¶¶ 105-06, 108.) Claim 2 further alleges: "The sexual harassment that Plaintiffs were subjected to was so severe or pervasive at the Lake County Sheriff's Office, that it was an accepted custom or practice." (¶ 110.) Lake County contends that Plaintiffs allege nothing to show that Lake County, as opposed to the Sheriff's Office, "maintained any custom or policy relevant to [their] 42 U.S.C. § 1983 claim, or that anyone followed any specific custom or policy." (ECF No. 20 at 6.) Lake County emphasizes that, under the Colorado Constitution, it is a separate entity from the Sheriff's Office. (Id.)
Plaintiffs respond, "[T]here is no doubt that the County and Sheriff's Office are statutorily [sic] separate entities, [but] discovery is needed to determine whether the County exercised `actual' or `de facto' control over the Sheriff's Office." (ECF No. 26 at 1.) Later, Plaintiffs reaffirm that they "do not contest [Lake County's] description with respect to Sheriff Fenske being an `independent constitutional officer' or `a distinct position' under the `Colorado Constitution' [citing ECF No. 20 at 6-7]," but "the County may still be found liable for the harm to Plaintiffs if it exercised `actual' or `de facto' control over employment decisions at the Sheriff's Office." (Id. at 6.) Plaintiffs then invoke the "`joint-employer' test" (discussed below), and assert that the Amended Complaint plausibly pleads that this test is satisfied. (Id. at 6-8.)
Both parties are, perhaps unwittingly, jumping back and forth between § 1983 and employment discrimination liability standards. They are not the same, but the parties' confusion is understandable because one of the more important cases on this topic, Bristol v. Board of County Commissioners of County of Clear Creek, 312 F.3d 1213, 1219 (10th Cir. 2002) (en banc), interweaves a discussion of both causes of action and can be misread as endorsing an overlap between § 1983 and Title VII that does not exist.
The Court will discuss Bristol in further detail below. Looking at the bigger picture, however, the question raised by the County's motion is, "Who is the proper defendant to a § 1983 lawsuit alleging an injury caused by a policy or practice of the county sheriff? The sheriff's office, or the county itself (through its board of commissioners)?"
One oft-cited decision from this District, Stump v. Gates, 777 F.Supp. 808 (D. Colo. 1991), is interpreted as establishing that the county, not the sheriff's office, is the proper defendant because the county has the capacity to sue or be sued while the sheriff's office, as a subdivision of the county, does not. See id. at 814-15. Stump actually held that city police departments are not separately suable from the cities that organized them, and that county coroner's offices are not separately suable from the counties they serve. Id. But many decisions from this District apply Stump to sheriff's offices. See Johnson v. Correct Care Sols., LLC, 2018 WL 7372075, at *4 (D. Colo. Nov. 21, 2018) (applying Stump to dismiss a sheriff's office as not suable separately under § 1983, and citing numerous cases doing the same), report and recommendation adopted, 2019 WL 764602 (D. Colo. Feb. 21, 2019).
The undersigned disagrees that sheriff's offices in Colorado have no capacity to be sued. In federal court, a municipal entity's "[c]apacity to sue or be sued is determined * * * by the law of the state where the court is located." Fed. R. Civ. P. 17(b)(3); cf. Martin A. Schwartz, Section 1983 Litigation Claims and Defenses §§ 5.02[F], 7.03 (4th ed., supp. 2019-2) (discussing whether municipal departments may be sued directly). The most thorough Colorado decision in this regard as to sheriff's offices is Tunget v. Board of County Commissioners of Delta County, 992 P.2d 650 (Colo. App. 1999). There, the plaintiffs' car was struck by that of a Delta County deputy sheriff. Id. at 651. The plaintiffs brought suit against Delta County's board of commissioners, "alleg[ing] that Delta County, through the Board, is liable under the doctrine of respondeat superior for the negligence of the deputy sheriff in causing the accident." Id. The trial court dismissed for failure to state a claim, reasoning "that the sheriff is a public entity separate and apart from the Board." Id. The Court of Appeals affirmed. It surveyed relevant provisions of the Colorado Constitution and the Colorado Revised Statutes, as well as case law on the topic, and concluded that "the sheriff would be responsible for any injuries resulting from the deputy's alleged negligence. [¶] Accordingly, the trial court correctly held that the sheriff, rather than the county or the Board, would be liable for the actions of the deputy sheriff. Thus, the court properly dismissed the claims against the Board." Id. at 652.
Among many relevant statutes, Tunget noted Colorado Revised Statute § 30-10-522, which reads:
Obviously the Colorado Legislature would not need to specify how a sheriff may recover on his or her indemnity bond "in an action brought against a sheriff for an action done by virtue of the sheriff's office" if no such action could be brought against the sheriff.
Moreover, the Tenth Circuit's Bristol decision, mentioned previously, makes no sense if a sheriff's office is not separately suable. In Bristol, a detention deputy working for the Clear Creek County Sheriff's Office was terminated because a medical condition prevented him from performing the essential functions of his job. 312 F.3d at 1215. The deputy sued both the board of county commissioners and the sheriff's office under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. Id. at 1215-16. "At trial, defendants moved for judgment as a matter of law, arguing that only the Sheriff was [the deputy's] employer," but "[t]he district court ruled that both the Sheriff and the Board of County Commissioners were [the deputy's] employers as a matter of law," and "[a] jury [then] returned a verdict for [the deputy], awarding him damages and attorney's fees." Id. at 1216 (emphasis in original). The question presented to the en banc Tenth Circuit was whether the board of county commissioners was the deputy's "joint employer" alongside the sheriff's office, or, alternatively, whether the sheriff's office and board of county commissioners were effectively a "single employer." Id. at 1216-18.
Interpreting Tunget and the authorities on which Tunget relied, the Tenth Circuit held in Bristol that "Sheriffs have exclusive control over the hiring and firing of their employees." Id. at 1219. This is probably an overstatement—the relevant authorities seem to give sheriffs exclusive control only over their deputies, not necessarily all of their employees. See, e.g., Colo. Rev. Stat. § 30-10-506 ("Each sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will...."); Tunget, 992 P.2d at 652 ("The sheriff, not the county or the Board, has the right of control with respect to the deputies."). Regardless, Bristol went on to say that "no evidence was introduced suggesting that the Board had any de facto authority over the Sheriff's employment decisions." 312 F.3d at 1219. Thus, the deputy could not satisfy the joint-employer test. Id. at 1220. The various factors of the single-employer test likewise cut against the deputy. Id. at 1220-21. The Tenth Circuit therefore remanded the case to the District Court "with instructions to dismiss this action as to the Board." Id. at 1221. The obvious implication is that a lawsuit against the sheriff's office only is a legitimate lawsuit.
However, simply because a Colorado sheriff's office has capacity to be sued apart from its corresponding county does not necessarily mean that it is the proper defendant, to the exclusion of the county, in a Monell action alleging an injury caused by a policy attributable to the sheriff. Indeed, certain dicta in Bristol has been interpreted as establishing that sheriffs are policymakers for the county, at least within the scope of their authority— meaning the county (through its board of commissioners) is the proper defendant in a Monell claim attacking the sheriff's actions. For the reasons explained below, the Court disagrees that Bristol ever established as much.
Attempting to persuade the Tenth Circuit to preserve the jury's verdict against the Clear Creek County board of commissioners,
Bristol's observation, "[t]hese cases do suggest ...", is surely dicta because the deputy had not brought a § 1983 claim, and because the Tenth Circuit does not create holdings by describing the "suggestion" of extra-circuit authority. Moreover, the key phrase is "when the Sheriff is held to set `official policy' for the county" (emphasis added), or in other words, when a court determines that the sheriff is a final policymaker for the county. Bristol never implied that all county sheriffs everywhere, or even just in Colorado, are policymakers. Bristol only noted, accurately, that extra-circuit decisions have found the sheriffs at issue to be policymakers for their respective counties and therefore the relevant county was liable for the sheriff's decisions.
But Bristol's language on this topic has taken on a life of its own in subsequent case law, mostly divorced from what Bristol actually says. For example, in Gonzales v. Martinez, 403 F.3d 1179 (10th Cir. 2005), which presented a § 1983 claim of deliberate indifference in the county jail, the court noted that the plaintiff had erroneously named only Huerfano County, Colorado, as the defendant—not its board of county commissioners, or even the county sheriff. Id. at 1182 n.7. The court decided that it did not need to address the issue because the plaintiff would fail to state a claim even if he had named the proper defendant. Id. But, it said,
Id.
Gonzales's quotation from Bristol omits Bristol's qualifying phrase, "these cases do suggest," and therefore presents the rest of the Bristol quotation as if a holding. Gonzales also seems to be reading the phrase "when the Sheriff is held to set `official policy'" as if it says "the Sheriff has been held to set `official policy.'" Of course, this portion of Gonzalez (like the portion of Bristol it relies upon) is dicta because the plaintiff had failed to state a claim in any event, and the Tenth Circuit does not create holdings through statements about what it "might" be required to do in situations not before it.
Lower courts have nonetheless cited Bristol or Gonzales, or both, for the notion that county sheriffs in Colorado set policy for the county, so the proper defendant in a § 1983 action based on the sheriff's policies is the board of county commissioners. See, e.g., Anglin v. City of Aspen, 552 F.Supp.2d 1205, 1216 (D. Colo. 2008) ("[the] Pitkin County Commissioners are liable
The Court agrees that if a Colorado sheriff is a final policymaker for the entire "body corporate and politic" known as "the county," Colo. Rev. Stat. § 30-11-101(1), then the county may be held liable in a § 1983/Monell lawsuit for an injury inflicted by an unconstitutional sheriff-made policy. However, no authority of which the Court is aware has analyzed whether Colorado law makes Colorado sheriffs policymakers over the entity dubbed "the county." Rather, the relevant cases all trace back to Bristol's dicta concerning the "suggest[ion]" of extra-circuit authority about the relationship of the sheriffs at issue to their counties. 312 F.3d at 1221. The Court thus turns to an examination of relevant Colorado law.
The Colorado Constitution creates the office of county sheriff, but it does not create the office independent of the county: "There shall be elected in each county ... one sheriff...." Colo. Const. art. XIV, § 8. This section goes on to refer to the sheriff and other constitutionally mandated county roles as "officers," demonstrating that the sheriff is an officer of the entity known as "the county," not just of the entity known as the "sheriff's office." From this perspective, it is difficult to say that a Colorado sheriff is something other than a "final policymaker" for Monell purposes (see Part III.A.1, above), at least within the sheriff's constitutional and statutory sphere of authority.
On the other hand, the sheriff's sphere of authority essentially defines the concept of the "sheriff's office." See, e.g., Colo. Rev. Stat. §§ 30-10-503 (sheriff has "possession of the courthouse and jail of the county"), -504 (sheriff appoints undersheriff "to serve during the pleasure of the sheriff"), -506 ("Each sheriff may appoint as many deputies as the sheriff may think proper and may revoke such appointments at will...."), -511 ("the sheriff shall have charge and custody of the jails of the county, and of the prisoners in the jails, and shall supervise them himself or herself or through a deputy or jailer"), -515 ("The sheriff, in person or by his undersheriff or deputy, shall serve and execute, according to law, all processes, writs, precepts, and orders issued or made by lawful authority and to him directed...."); -516 ("It is the duty of the sheriffs, undersheriffs, and deputies to keep and preserve the peace in their respective counties, and to quiet and suppress all affrays, riots, and unlawful assemblies and insurrections."). And if the
As it turns out, however, Colorado law forecloses any notion that a sheriff's office should be held to account alone, independent from "the county." By statute, any money judgment "against a county of this state in the name of its board of county commissioners or against any county officer in an action prosecuted by or against him in his official capacity or name of office" must be paid either out of "the ordinary county fund" or through a special property tax, which "shall be paid over, as fast as collected by the [treasurer], to the judgment creditor." Colo. Rev. Stat. § 30-25-104(1). In other words, when a Monell claim is based on a sheriff-made policy, any distinction between suing the sheriff's office versus suing the county becomes purely theoretical, because the county will pay regardless.
Here, Lake County argues that Plaintiffs' Claim 2 fails to plead a policy attributable to the County, as opposed to the Sheriff's Office. (ECF No. 20 at 6.) The argument has some merit, but the Court "will not dismiss [Claim 2] at this stage because doing so would not serve the purposes of a Rule 12(b)(6) motion." Estate of Walter ex rel. Klodnicki v. Corr. Healthcare Cos., Inc., 232 F.Supp.3d 1157, 1164 (D. Colo. 2017). Lake County must pay any judgment against the Sheriff's Office, so the only possible significance dismissal might have is in the scope of discovery. As the Court has said in similar situation, no such dismissal is warranted if discovery would either be unchanged or more complicated —which would be the result here:
Id.
The Court recognizes that, by the time of summary judgment and/or trial, Plaintiffs will need to explain clearly the policy at issue and the policymaker(s) to whom the policy is attributable. Even if the County would be responsible for paying any judgment regardless, the Court and the parties cannot evaluate the relevance and probative value of the evidence without knowing Plaintiffs' precise theory. At this stage however, no such evaluations are needed.
For all these reasons, Lake County's motion is denied as to Plaintiffs' Claim 2.
The story is much simpler as to Plaintiffs' Claim 4, which alleges retaliation for exercising First Amendment rights. Plaintiffs have alleged that the County either forbade the new sheriff (Reyes) from rehiring Plaintiffs, or at least convinced her not to do so, until this lawsuit ends. (¶¶ 74-79, 145.)
The County does not argue that Plaintiffs' choice to file a lawsuit, particularly one against a governmental entity, is not protected by the First Amendment. Cf. Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) ("the right of access to the courts is an aspect of the First Amendment right to petition the Government for redress of grievances"). Indeed, the County seems oblivious to Plaintiffs' First Amendment claim against it. (See ECF No. 20 at 2 ("Plaintiffs allege they were subjected to `unlawful discrimination' and `retaliation' thereby creating a hostile work environment" (emphasis added)); id. at 6 (referring to "Plaintiffs' 42 U.S.C. § 1983 claim" in the singular).) Accordingly, Plaintiffs have not failed to state a § 1983 claim against the County for retaliation in violation of the First Amendment. This portion of the County's motion to dismiss will be denied.
Lake County next argues, "All claims brought against the [County] pursuant to Title VII [necessarily referring to Claims 1 and 3], should be dismissed, as the Sheriff is an independent constitutional officer under the Colorado Constitution, and is therefore not subject to the control or supervision of the [County]." (ECF No. 20 at 6.) The County cites Bristol as support (id. at 7), but fails to acknowledge that Bristol affirmed that a county, although a formally separate entity for employment discrimination purposes, might nonetheless be a "joint employer" alongside, or "single employer" effectively merged with, a sheriff's office, see 312 F.3d at 1217-21.
"[I]ndependent entities [may be] joint employers if the entities share or co-determine those matters governing the essential terms and conditions of employment. In other words, courts look to whether both entities exercise significant control over the same employees." Id. at 1218 (internal quotation marks and citations omitted). Here, Plaintiff has plausibly
For the reasons set forth above, Lake County's Motion to Dismiss Plaintiffs' Amended Complaint and Jury Demand Pursuant to Fed. R. Civ. P 12(b)(6) (ECF No. 20) is DENIED.