United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION GRANTING MOTION TO
CAMPBELL US. District Court Judge
Robert Kohl was a police officer with Defendant Salt Lake
City Police Department (Department). After he was
constructively discharged in 2010 (he resigned in lieu of
being fired), Mr. Kohl filed a claim under 42 U.S.C. §
1983. He contends that the Department, as well
as individual Defendants Chris Burbank (Chief of Police at
the time) and Lieutenant Melody Gray, retaliated against him
because he exercised his First Amendment right to freely
associate with the Fraternal Order of Police (FOP).
Defendants, who assert that Mr. Kohl left the Department
because he lied during an internal affairs investigation,
have a filed a partial motion to dismiss the § 1983
claim. According to their motion, Mr. Kohl's Amended
Complaint fails to state a claim for relief under Federal
Rule of Civil Procedure 12(b)(6).
reasons set forth below, the court GRANTS the Defendants'
partial motion to dismiss.
Kohl began working as a police officer for the Salt Lake City
Police Department in 2001. During that time, he was a member
of the Salt Lake Police Association (SLPA), the employee
union that has a collective bargaining agreement with Salt
Lake City. He was also a member of the Fraternal Order of
Police (FOP) union, which does not have a collective
bargaining agreement with the City. Mr. Kohl alleges that the
Department was aware of Mr. Kohl's affiliation with the
FOP, but he does not expressly allege that either Lieutenant
Gray or Chief Burbank were aware of his membership.
December 12, 2010, he resigned from his job. According to Mr.
Kohl, his constructive discharge was the result of the
Department's retaliation against him for his association
with the FOP. Mr. Kohl does not specify actions he took or
statements he made as a member of the FOP. The court gathers
from the allegations in his Amended Complaint that his
protected activity was joining the union.
Policies Regarding FOP and its Members
Kohl alleges that the Department and Chief Burbank
“implemented and executed policies, customs, and
practices that unconstitutionally discriminated against
members of the FOP.” (Am. Compl. ¶ 74 (Docket No.
11).) Lieutenant Gray “helped [Chief Burbank] implement
[those] policies, customs, and practices . . . .”
(Id. ¶ 81.)
unfair treatment of the FOP as an entity included
denial of “equal access to avenues of communication,
including equal access to recruits” and “the
ability to post information on the Department's bulletin
board.” (Id. ¶ 11.) According to Mr.
Kohl, the Department mistreated FOP members by
enacting “a policy where FOP members would have lower
priority in achieving promotions . . . [and] were targeted
for termination, ” and requiring that a Department
attorney be present for all Internal Affairs (IA)
investigations of FOP members but not IA investigations of
non-FOP members. (Id. ¶¶ 78-79.) Finally,
he asserts that the Department, as well as Chief Burbank and
Lieutenant Gray, “issued significantly harsher
discipline against FOP members than non-FOP members for
similar malfeasances.” (Id. ¶ 14.) Mr.
Kohl does not identify employees who received disparate
levels of discipline and does not describe the
“malfeasances” that occurred. He does not
identify any discipline that Chief Burbank personally imposed
on Mr. Kohl.
Kohl's Learning Disability and
Kohl has a learning disability “involving dyslexia,
dysgraphia, and other communication-based disabilities that
ma[k]e it difficult for [him] to write proficiently.”
(Id. ¶ 15.) The Department was aware of his
disability. “Despite knowledge of his documented
disability, the Department, and specifically, [Lieutenant]
Gray, . . . disciplined him for his report writing.”
(Id. ¶ 16.) According to Mr. Kohl,
“[o]thers in the Department did not receive the same
level of scrutiny and/or discipline as [he did] in regards to
report writing.” (Id. ¶ 17.)
Kohl alleges that Lieutenant Gray “began the process of
‘papering'” him. (Id. ¶ 82.)
“‘Papering' is where a supervising officer
begins documenting a series of complaints regarding a
supervised officer['s] conduct to use as support for the
supervised officer's eventual termination.”
(Id. ¶ 83.) According to Mr. Kohl, the
complaints against Mr. Kohl “had no basis in
fact.” (Id. ¶ 84.) He does not describe
the complaints, who made the complaints, the alleged
inadequacies, or the falsity of the accusations, and he does
not allege that Lieutenant Gray knew or had reason to know
that the complaints were unfounded. Moreover, it is not clear
that the complaints were based on his report-writing
Kohl complained to Chief Burbank that Lieutenant Gray was
harassing him with the ongoing “papering.” Chief
Burbank told Mr. Kohl that he was aware of that harassment
and that he would investigate Lieutenant Gray's actions.
But Chief Burbank never conducted that investigation.
Mr. Kohl was increasingly disciplined for writing incident
reports that his supervisor Lieutenant Gray deemed
inadequate, he “attempted to provide his supervisors
with documentation of his learning disability.”
(Id. ¶ 18.) He was warned that “if he
formally submitted documentation of his learning disability
his employment with the Department would be immediately
terminated.” (Id. ¶ 19.) Then, in 2010
when he did submit the documentation, he “was accused
of making excuses for his report writing.”
(Id. ¶ 20.) He does not identify either the
person who made the threat or the person who made the
Internal Affairs Investigation and Kohl's
2010, the Department investigated Mr. Kohl for allegedly
using excessive force during an arrest. During the IA
review of the excessive force allegation, the Department
interviewed him and ultimately accused him of lying because
“his verbal rendition of events was inconsistent with
his written version.” (Id. ¶ 23.) Mr.
Kohl told the Department that “any inconsistencies were
due to his learning disability and the fact that he was not
reasonably accommodated with additional time to provide a
supplemental report” about the incident leading to the
excessive force allegation. (Id. ¶ 24.)
he was accused of lying in his report, he spoke to the SLPA
union representative Andy Leonard, who said “he had
been in contact with [SLPA President] Gallegos,
Findlay, and [Chief] Burbank, and that the only
way for Kohl to keep his job was to claim that he
misrepresented facts concerning the . . . arrest.”
(Id. ¶ 26.) SLPA President Gallegos also
advised him that “he had to lie in order to keep his
job.” (Id. ¶ 27.) Mr. Kohl alleges
“on information and belief” that the Department
condoned the advice he received from the two union
representatives. (See id. ¶ 30.) Based on
that advice, “and under pressure of losing his job
because his disability resulted in a poorly written report,
Kohl claimed that his report was incorrect and
untruthful” during an IA hearing. (Id. ¶
Mr. Kohl said he lied in his written report, Lieutenant Gray
told Sergeant Ammottthat the Department was going to fire Mr.
Kohl. Sergeant Ammott passed that information along to Mr.
Kohl, who then contacted SLPA President Gallegos who
“assured Kohl that he would be transferred to the East
Side and that Gallegos was in direct contact with [Chief]
Burbank and other deputy chiefs regarding Kohl's
situation.” (Id. ¶ 33.)
December 12, 2010, the Department, citing Mr. Kohl's lie,
gave Mr. Kohl the option of resigning or being discharged.
Mr. Kohl chose to resign.
meantime, the Department sent Mr. Kohl's IA file to the
Peace Officer Standards and Training (POST)
academy. In August 2011, eight months after Mr.
Kohl resigned, POST “exonerated him.”
(Id. ¶ 40.) Despite learning about the POST
decision, the Department “declined to reinstate Kohl
despite knowledge that Kohl did not lie under
Garrity as determined by ...