JILL N. PARRISH, District Judge.
This matter comes before the court on defendants' Amended Partial Motion to Dismiss filed on July 11, 2018. (ECF No. 13). Plaintiff responded in opposition on July 31, 2018, (ECF No. 20), to which defendants replied on August 28, 2018, (ECF No. 31).
This is an employment action asserting federal claims under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1983, alongside a state whistleblower claim under the Utah Protection of Public Employees Act ("UPPEA"). The operative First Amended Complaint was filed by Mr. Amann in state court on April 10, 2018, and is asserted against the Office of the Utah Attorney General ("OAG"), Attorney General Sean Reyes, and Bridget Romano, who, during the relevant period, served as Utah's Solicitor General and as the OAG's Chief Civil Deputy.
Beginning in August of 1998, plaintiff Paul G. Amann worked as a prosecutor in the Child Protection division of Utah's Office of Attorney General ("OAG"). In 2003, he was promoted to represent the Internet Crimes Against Children Task Force—a unit within the Children's Justice division—a role that earned him considerable accolades over the following decade, both internally and externally.
In April of 2013, Mr. Amann began reporting violations of state and federal law to the OAG's Chief Civil Deputy and Attorney General. The violations of law emanated from an allegedly improper romantic relationship between a paralegal, Cynthia Poulson, and Mr. Amann's supervisor, Craig Barlow. Mr. Amann reported that Ms. Poulson, whose position was federally funded, had been tasked with working on state cases in contravention of law, and further reported that she was being asked to do the work of an attorney. Mr. Amann also reported that the relationship bore indicia of, or created conditions amounting to, sexual harassment.
Mr. Amann alleges that the OAG retaliated against him for reporting the violations by transferring him from the Children's Justice Division to the Securities division, reducing his salary by 5%, and passing him over for a promotion. In December 2013, Mr. Amann reported the same violations of law to Mr. Reyes, Utah's then-incoming Attorney General. Mr. Amann also informed Mr. Reyes that Ms. Poulson—who had since apparently passed the bar and had been promoted to an attorney position—was employed under a contract that contained false statements regarding the amount of time she had practiced law. He also informed Mr. Reyes that Ms. Poulson was a convicted felon who had served time in state prison for, among other crimes, assaulting a law enforcement officer. Mr. Reyes refused to speak with Mr. Amann about these complaints.
In early 2014, Mr. Amann reported these violations to the Department of Human Resources Management ("DHRM"). In March of 2014, Mr. Reyes issued a directive to all employees of the OAG, stating that all employees who communicate "with media, or those claiming to be media, concerning the Attorney General's Office including policies, personnel, cases or any other [OAG] business that take place outside of this system are subject to immediate disciplinary actions up to and including termination."
In August of 2014, Mr. Amann reported violations of state law he observed in the Securities division. In October of 2014, Mr. Amann was transferred to the Antitrust division, having been informed that this transfer was the result of a co-worker's complaint about him. Mr. Amann requested records documenting the complaint and the consequent investigation but was rebuffed, at which point he sought to compel the production of the requested records through judicial process. After several appeals, a state court ordered the OAG to provide the records to Mr. Amann, which revealed that Mr. Amann's supervisor had been soliciting damaging information about him prior to the co-worker's complaint.
In March and September of 2015, Mr. Amann met with the OAG's human resources director, as well as investigators from DHRM, to provide evidence of corruption in the OAG, and to support Assistant Attorney General R. Jason Hanks' claims of sexual harassment. Mr. Amann subsequently provided testimony in state Labor Commission proceedings initiated by Mr. Hanks regarding his sexual harassment allegations.
In July of 2015, Mr. Amann contacted legislative auditors, who subsequently interviewed him regarding corruption in the OAG as well as the OAG's failures to protect whistleblowers. In response to a request for more information from legislative auditors, Mr. Amann provided documents and a 12-page summary of corruption in the OAG. In September of 2015, the OAG copied Mr. Amann's office computer and conducted a forensic exam thereof, which would have revealed documents detailing Mr. Amann's communication with legislative auditors, as well as documents he had prepared in connection with Mr. Hanks' Labor Commission proceedings. One week after the OAG discovered these documents, Cynthia Poulson, at the request of the OAG, filed an internal complaint about Mr. Amann.
On October 8, 2015, Mr. Amann represented himself in state administrative proceedings in which he attempted to obtain evidence of an investigation into Mr. Amann that had been previously disclosed by the OAG's General Counsel, Parker Douglas.
On October 19, 2015, Mr. Amann was suspended indefinitely by Chief Civil Deputy Bridget Romano. Mr. Amann was not informed of the reason for suspension, and was ordered by Ms. Romano not to communicate with co-workers or clients, and not to access any state databases. During and after the meeting in which Ms. Romano suspended Mr. Amann, two law enforcement officers were present.
In May of 2016, Mr. Amann received a subpoena duces tecum in connection with a state lawsuit initiated by Mr. Hanks. The OAG contacted Mr. Amann and offered to help him quash the subpoena. Mr. Amann declined the OAG's assistance. In June of 2016, the OAG ordered Mr. Amann to participate in a "Garrity interview"
On August 17, 2016, Ms. Romano informed Mr. Amann that she had drafted a Notice of Intent to Terminate, but she declined Mr. Amann's request for the documents upon which the termination relied. On September 8, 2016, Ms. Romano mailed the Notice of Intent to Terminate to Mr. Amann. The notice contained two fabricated claims justifying Mr. Amann's termination, one of which was subsequently withdrawn by the Solicitor General, Tyler Green, on grounds that it was without basis.
On December 2, 2016, Mr. Amann was formally terminated. He initiated suit in state court exactly 180 days later on May 30, 2017.
Under Rule 12(b)(6), a defendant may move to dismiss a claim when the plaintiff fails to state a claim upon which relief can be granted. The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties may present at trial but to "assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quoting Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991)).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1108 (10th Cir. 1991) (citing Scheuer v. Rhodes, 416 U.S. 232 (1974)). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff has alleged facts that allow "the court to draw [a] reasonable inference that the defendant is liable for the misconduct alleged." Id.
Defendants request dismissal of Mr. Amann's whistleblower claim under the Utah Protection of Public Employees Act (the "UPPEA") for failure to strictly comply with the Utah Governmental Immunity Act's (the "UGIA") undertaking requirement. On Mr. Amann's Title VII retaliation claim, defendants seek an order limiting the actionable events to Mr. Amann's termination, arguing that all possible adverse actions that pre-date that event are time-barred. Finally, on Mr. Amann's § 1983 claim, Mr. Reyes seeks dismissal on grounds that he is entitled to qualified immunity, and Ms. Romano argues that she is entitled to qualified immunity from liability for any events that occurred before she was made Chief Civil Deputy in October of 2015. The court addresses each argument in turn.
Before this action was removed to federal court, defendants moved the state court to dismiss Mr. Amann's UPPEA claim on grounds that he had failed to file a $300 undertaking simultaneously with the complaint. That motion was denied by the state court on February 28, 2018. (ECF No. 34-2).
In aid of judicial economy, removal to federal court does not vitiate proceedings conducted in the state tribunal. Rather, under 28 U.S.C. § 1450, "[a]ll injunctions, orders, and other proceedings had in such action prior to its removal shall remain in full force and effect until dissolved or modified by the district court." Thus, this action arrived in federal court with an order "in full force and effect" denying defendants' motion to dismiss for failure to file an undertaking simultaneously with the complaint.
As the defendants rightly argue, this court may "treat the order as it would any such interlocutory order it might itself have entered." See ECF No. 22 at 3 (quoting Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1304 (5th Cir. 1988)). Thus, insofar as defendants seek dismissal of the UPPEA claim due to the allegedly untimely filing of the undertaking, the court construes defendants' motion to dismiss as a motion for reconsideration.
"Grounds warranting a motion to reconsider include (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice."
The crux of the motion to dismiss litigated before the state court centered around the appropriate interpretation of Utah Code § 63G-7-601, which reads:
Because Mr. Amann filed his undertaking 13 days after initiating suit, defendants moved the state court to dismiss his whistleblower claim for failure to file an undertaking "[a]t the time the action [was] filed[.]" § 63G-7-601(2). Defendants urged a rigid interpretation of the statute under which a failure to file the $300 undertaking simultaneously with the complaint requires dismissal. Mr. Amann argued for a purposive interpretation of the undertaking requirement—the purpose of which has been characterized by the Utah Supreme Court as a mechanism to deter nuisance suits. See Hansen v. Salt Lake Cty., 794 P.2d 838, 841 (Utah 1990). Thus, Mr. Amann argued, the statute should be interpreted to permit the undertaking to be filed at any time before the government begins acting in its defense.
On the basis of the parties' memoranda and oral arguments, Utah's Third Judicial District Court denied defendants' motion to dismiss by telephone on February 27, 2018.
In denying defendants' motion to dismiss, the state court first noted that the Utah Supreme Court has consistently interpreted the undertaking requirement as non-jurisdictional.
Applying that interpretation, the state court found that Mr. Amann—having filed the undertaking thirteen days after his complaint—failed to file the undertaking as soon as practical under the circumstances. Thus, it concluded that he did not strictly comply with § 63G-7-601. But Mr. Amann orally moved for an extension of time to file the undertaking under Rule 6(b)(1)(B) of the Utah Rules of Civil Procedure, which permits a court to grant an extension of time "after the time has expired if the party failed to act because of excusable neglect." The state court granted his motion, finding excusable neglect based on:
(ECF No. 20-4 at 4). This decision to grant Mr. Amann's rule 6 motion rendered the filing of the undertaking timely. But the state court went one step further and ordered the then timely undertaking refunded to Mr. Amann, finding that the complaint—far from a frivolous nuisance suit—was "extremely well pled and supported." (ECF No. 34-2 at 12).
The defendants vigorously object to the state court's ruling extending Mr. Amann's time to file the undertaking. They argue that under Utah Supreme Court precedent, the UGIA's "comprehensive" undertaking requirement displaces Rule 6 of the Utah Rules of Civil Procedure. Because the state court did not fully analyze this issue in its ruling, the court reviews the relevant law in greater detail below.
Defendants rely on Craig v. Provo City, in which the Utah Supreme Court held that the UGIA is "all-encompassing on the matters that it regulates in comprehensive detail[.]" Craig v. Provo City, 389 P.3d 423, 427 (Utah 2016) (emphasis in original). Defendants argue that the UGIA's undertaking requirement is one such matter. The court is unpersuaded.
As an initial matter, the question presented in Craig was whether a separate, generally applicable savings statute could operate to revive a claim that was time-barred under the limitations period prescribed by the UGIA. In contrast, the question here involves the interaction between the UGIA and Rule 6 of the Utah Rules of Civil Procedure, a relationship addressed by the UGIA itself: "An action brought under this chapter shall be governed by the Utah Rules of Civil Procedure to the extent that they are consistent with this chapter." § 63G-7-601(1).
In Marziales, the Utah Supreme Court applied this directive to conclude that nothing in Rule 3 of the Utah Rules of Civil Procedure—providing that "[d]ishonor of a check or other form of payment does not affect the validity of the filing"—is inconsistent with the undertaking provision. See 423 P.3d at 1150. The court went on to consider whether Craig nevertheless barred application of rule 3 to the undertaking requirement. Answering in the negative, the court explained that the UGIA "does not generally displace all otherwise applicable law, but [that] it is `comprehensive' and `all-encompassing' on the `matters that it regulates in comprehensive detail." Id. The court clarified that portions of the UGIA will be considered comprehensive when they "specifically regulate an area and contain no language to support the idea that they should be supplemented." Id.
There is little doubt that the UGIA's sparse undertaking section—which raises more questions than it answers—is not a portion of the UGIA that is regulated in comprehensive detail. Indeed, the undertaking portion facially contemplates that it be supplemented by other generally applicable laws in that it provides for court action simultaneous with the filing of the undertaking without creating a procedure to facilitate it.
This conclusion is reinforced by Marziales' holding that rule 3 of the Utah Rules of Civil Procedure was applicable to the undertaking requirement, thereby implicitly finding that the undertaking requirement is not comprehensive. Id. Indeed, the Marziales court repeatedly distinguished the undertaking portion of the UGIA from the decidedly comprehensive and all-encompassing portion of the UGIA that governs a notice of claim. See id. ("We emphasize that our determination today that rule 3 is not displaced by the provisions of the [UGIA] extends only to the filing of an undertaking, not to the other prerequisites to filing an action under the [UGIA] such as a notice of claim.").
In sum, an analysis of Craig's framework for determining whether a portion of the UGIA is comprehensive, the Utah Supreme Court's application of that framework to the undertaking provision in Marziales, and the Utah Supreme Court's consistent interpretation of the undertaking requirement as non-jurisdictional all persuade the court that the undertaking requirement is perfectly compatible with Rule 6 of the Utah Rules of Civil Procedure. Thus, the state court's grant of an extension of time thereunder—rendering timely Mr. Amann's undertaking filed thirteen days after the filing of the complaint and six weeks before defendants were even served—requires no revision by this court.
Moreover, even if Rule 6 were incompatible with the UGIA's undertaking portion, subsection 601(2) unambiguously vests courts with the authority to vary the undertaking amount. Pursuant to that grant of discretion, the state court set the undertaking amount to zero, thereby "alleviating the plaintiff of the undertaking requirement in this case[.]" (ECF No. 34-2 at 12). This court finds no grounds to revise that ruling.
Defendants' motion to reconsider the state court's ruling denying its motion to dismiss the UPPEA claim for failure to file a timely undertaking is therefore denied.
"Title VII makes it unlawful to retaliate against an employee for opposing practices made unlawful by the statute." Hansen v. SkyWest Airlines, 844. F.3d 914, 924 (10th Cir. 2016); 42 U.S.C. § 2000e-3(a). Mr. Amann alleges that he was retaliated against for reporting Title VII violations and participating in investigations and legal proceedings emanating from a co-worker's allegations of sexual harassment.
Before filing suit under Title VII, a plaintiff must file a charge with the Equal Employment Opportunity Commission (EEOC) either 180 or 300 days "after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). The parties agree that Mr. Amann was subject to the 300-day timeframe for filing his charge.
Defendants seek a ruling limiting recovery on Mr. Amann's Title VII claim to damages arising from his termination, which is the only event alleged to have occurred within 300 days of filing his charge. Mr. Amann responds that because the unlawful employment conduct he suffered was a hostile work environment comprised of a series of events, rather than discrete actionable harms, he may seek recovery for the OAG's entire course of conduct so long as at least one constituent component thereof occurred within 300 days of his EEOC filing.
The Supreme Court in National Railroad Passenger Corp. v. Morgan, repudiating more permissive approaches that had arisen in the lower courts, held that Title VII "precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period." 536 U.S. 101, 105 (2002). Nevertheless, Morgan made clear that if a Title VII plaintiff can establish an actionable hostile work environment claim, "the entire time period of the hostile environment may be considered by a court for the purposes of determining liability" if at least some portion of the conduct occurred within 300 days of filing the charge. See id. at 117. Thus, the critical question for purposes of this motion is whether Mr. Amann has adequately alleged the existence of a hostile work environment—a single unlawful employment practice comprised of a series of events—or whether he has alleged a number of discrete, individually actionable, adverse actions. If it is the latter, the earliest event for which Mr. Amann filed a timely charge with the EEOC is his termination.
"Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify." Id. at 114. "Hostile environment claims are different in kind" in that "[t]heir very nature involves repeated conduct." Id. at 115. A hostile work environment will be found when repeated conduct is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment[.]" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted).
"In determining whether an actionable hostile work environment claim exists, we look to `all the circumstances,' including `the frequency of the . . . conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. at 116 (quoting Harris, 510 U.S. at 23). The Tenth Circuit has provided two additional considerations to guide the analysis of when a series of acts will qualify as a single actionable hostile work environment practice. See Hansen, 844 F.3d at 923. First, whether the acts are "related by type, frequency, and perpetrator." Id. (quoting Duncan v. Manager, Dep't of Safety, City & Cty. of Denver, 397 F.3d 1300, 1309 (10th Cir. 2005)). And second, "whether the acts occurred when the employee `was working in the same place.'" Id. (quoting Tademy v. Union Pac. Corp., 614 F.3d 1132, 1144 (10th Cir. 2008)). These factors are non-exclusive; "flexibility is useful in a context . . . as amorphous as hostile work environment." Id. (quoting McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 77 (2d Cir. 2010)).
In support of his hostile work environment claim, Mr. Amann alleges that, over the course of four years, he was transferred to different departments twice (the first of which resulted in a 5% decrease in pay), denied a promotion, forbidden (along with all employees of the OAG) from speaking with news media, denied access to evidence of an investigation of which he was a subject, had his computer mirror-imaged, suspended (during which time he was forbidden from speaking with his co-workers), and ultimately terminated.
Although the hostile work environment analysis is a flexible one, these discrete acts cannot combine to create a claim for hostile work environment under any articulation of that phenomenon. Mr. Amann's main argument in support of a coherent hostile work environment claim is that each of the relevant events occurred during the tenure of Attorney General Reyes. But similarity of leadership cannot, without more, convert discrete events into a hostile work environment claim. Moreover, with the exception of two departmental transfers, the conduct alleged is not "related by type," and its frequency does not rise to the level of pervasive. See Duncan, 397 F.3d at 1309. Even granting all reasonable inferences in his favor, Mr. Amann has not alleged facts that plausibly suggest he experienced conduct "sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment[.]" Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (citation omitted). Instead, the events he alleges are much more like the discrete acts identified by the Supreme Court in Morgan as independently actionable. See Morgan, 536 U.S. at 114 ("Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify.").
Thus, Mr. Amann's termination is the earliest "alleged unlawful employment practice" for which he may recover.
Mr. Reyes and Ms. Romano each assert a qualified immunity defense in response to Mr. Amann's § 1983 claim; Mr. Reyes from suit entirely and Ms. Romano from any claim predicated on events that occurred before she was made Chief Civil Deputy of the OAG in October of 2015.
But the court need not resolve the individual defendants' qualified immunity defenses because the complaint is deficient in a more fundamental respect. Specifically, the complaint does not contain sufficient allegations to provide fair notice to the individual defendants of the basis of the § 1983 claims against them. As a result, the complaint will be dismissed without prejudice, and Mr. Amann will be granted leave to amend to address the deficiencies identified herein.
Where multiple defendants are involved, "[i]t is particularly important . . . that the complaint make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her." Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (quoting Robbins v. Okla. ex rel. Dep't of Human Servs., 519 F.3d 1242, 1250 (10th Cir. 2008)); see also Bulanda v. A.W. Chesterton Co., No. 11 C 1682, 2011 WL 2214010, at *2 (N.D. Ill. June 7, 2011) (dismissing complaint that made a number of generic allegations as to the defendants collectively); Boykin Anchor Co. v. AT&T Corp., No. 5:10-CV-591-FL, 2011 WL 1456388, at *4 (E.D.N.C. Apr. 14, 2011) ("Plaintiff's attempt to treat all defendants as one `corporate family' for purposes of this lawsuit is unfounded.").
In the §1983 context, where individual defendants are generally entitled to assert the defense of qualified immunity at the motion to dismiss stage—and successively thereafter, each time with an interlocutory appeal as of right—it is especially important that the complaint make specific allegations regarding who did what to whom. This is so because resolution of the qualified immunity issue requires analysis of whether the alleged conduct of each individual defendant, taken as true, violates clearly established law. Generalized allegations that "defendants" took certain action frustrates that review.
Here, the operative complaint does not provide sufficient information to adequately apprise the individual defendants of the specific constitutional violation(s) underlying the § 1983 claims against them. While the complaint alleges multiple harms that may well violate Mr. Amann's First Amendment rights, they are often alleged to have been perpetrated by the collective "defendants," or by "the OAG."
As defendants rightly note, there can be no respondeat superior liability under § 1983. Thus, while Mr. Amann cannot be expected to know the full extent of the involvement of Mr. Reyes and Ms. Romano in the alleged First Amendment violations, his complaint must specifically allege conduct that will facilitate the court's resolution of whether the individual defendants' conduct violates clearly established First Amendment rights. Of course, those allegations will be entitled, as is required at the motion to dismiss stage, to the presumption of truth, and all reasonable inferences favorable to Mr. Amann will be granted. The qualified immunity analysis will be governed by the complaint alone. See Sayed v. Virginia, 744 F. App'x 542, 546 (10th Cir. 2018) (explaining that when qualified immunity is asserted in a Rule 12(b)(6) motion, courts "evaluate `the defendant's conduct as alleged in the complaint'" (quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (emphasis in original)).
At oral argument, Mr. Amann's counsel conceded that the complaint could more fully link the adverse action to the conduct of the individual defendants. The court agrees, and will thus dismiss the complaint without prejudice and grant Mr. Amann leave to amend his complaint to remedy the deficiencies articulated. If Mr. Amann's amended complaint gives rise to a good faith argument by the individual defendants that the conduct alleged does not violate clearly established law, they may, of course, assert that defense in response.
For the reasons articulated, defendants' amended partial motion to dismiss (ECF No. 13) is
