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Kohl v. Burbank

United States District Court, D. Utah, Central Division

March 7, 2017

ROBERT KOHL, Plaintiff,
CHRIS BURBANK, as an individual; MELODY GRAY, as an individual; and SALT LAKE CITY, Defendants.


          TENA CAMPBELL US. District Court Judge

         Plaintiff 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.[1] 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).

         The 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).

         For the reasons set forth below, the court GRANTS the Defendants' partial motion to dismiss.


         Robert 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.

         On 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.

         Department Policies Regarding FOP and its Members

         Mr. 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.)

         The 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.

         Mr. Kohl's Learning Disability and “Papering”

         Mr. 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.)

         Mr. 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 inadequacies.

         Mr. 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.

         After 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 accusation.

         The Internal Affairs Investigation and Kohl's Resignation

         In 2010, the Department investigated Mr. Kohl for allegedly using excessive force during an arrest.[3] 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.)

         After 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[4], 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.[5] (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. ¶ 29.)

         After Mr. Kohl said he lied in his written report, Lieutenant Gray told Sergeant Ammott[6]that 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.)

         But on 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.

         POST Investigation

         In the meantime, the Department sent Mr. Kohl's IA file to the Peace Officer Standards and Training (POST) academy.[7] 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[8] as determined by ...

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