United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING DEFENDANTS'
MOTION FOR SUMMARY JUDGMENT (ECF NO. 59)
J. Furse Magistrate Judge
West Valley City (the “City”) and Kelly Davis
(collectively the “West Valley Defendants”) move
the Court for summary judgment on Plaintiff Karen
Bird's 42 U.S.C. § 1983 First Amendment retaliation
claim. (Defs.' Mot. for Summ. J. (Mot.), ECF No. 59.)
After considering the parties' briefing, oral argument,
and the Tenth Circuit's prior opinion in this case, the
Court DENIES the West Valley Defendants' Motion for
West Valley Defendants assert no evidence exists to support
Ms. Bird's contention that their belief she spoke to the
press acted as a substantial or motivating factor in her
termination. (Mot. ii, ECF No. 59.) The Court finds material
disputes of fact prevent summary judgment on this element of
Ms. Bird's claim. Alternatively, the West Valley
Defendants argue Ms. Bird cannot contest the undisputed fact
that the West Valley Defendants would have terminated Ms.
Bird's employment regardless of their belief that she
spoke to the press. (Id.) The Court, however, finds
material disputes of fact prevent summary judgment on this
element Ms. Bird's claim. Lastly, Mr. Davis asserts
qualified immunity shields him from liability in this case.
(Id. at v.) The material factual disputes also
prevent a finding prior to trial that qualified immunity
protects Mr. Davis. Therefore, the Court denies the West
Valley Defendants' Motion for Summary Judgment.
Motion before the Court results from a Tenth Circuit remand.
The Court originally granted the West Valley Defendants
summary judgment on Ms. Bird's Title VII claims, §
1983 equal protection claim, contract claims, and § 1983
First Amendment retaliation claim. (Mem. Dec. & Order,
ECF No. 44.) Ms. Bird appealed; the Tenth Circuit affirmed in
part and reversed the grant of summary judgment on Ms.
Bird's § 1983 First Amendment retaliation claim for
further proceedings consistent with its opinion. Bird v.
West Valley City, 832 F.3d 1188, 1212-13 (10th Cir.
Federal Rule of Civil Procedure 56(a), courts grant summary
judgment if the movant shows no genuine dispute as to any
material fact exists, and “the movant is entitled to
judgment as a matter of law.” “A fact is
‘material' if, under the governing law, it could
have an effect on the outcome of the lawsuit. A dispute over
a material fact is ‘genuine' if a rational jury
could find in favor of the nonmoving party on the evidence
presented.” Tabor v. Hilti, Inc., 703 F.3d
1206, 1215 (10th Cir. 2013) (quoting E.E.O.C. v.
Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th
Cir. 2000)). In evaluating a motion for summary judgment, the
Court reviews “the facts in the light most favorable to
the nonmovant and draw[s] all reasonable inferences in the
nonmovant's favor.” Jones v. Norton, 809
F.3d 564, 573 (10th Cir. 2015).
the evidence in a light most favorable to Ms. Bird, the
following facts guide the Court's decision. In November
2011, West Valley City Animal Services (“Animal
Services”) terminated Karen Bird. Originally, in August
of 2001, Animal Services hired Ms. Bird as a kennel tech.
(Reply Mem. in Supp. of Defs.' Mot. For Summ. J. (Reply),
Statement of Elements & Undisputed Material Facts (Facts)
¶ 1, ECF No. 67.) In 2002, Kelly Davis, Ms. Bird's
supervisor, promoted Ms. Bird to Shelter Manager. (Pl.'s
Opp'n to Defs.' Mot. for Summ. J. (Opp'n),
Response to Defs.' “Undisputed Material
Facts” (Facts) ¶ 2, ECF No. 62.) From 2002 until
Ms. Bird's termination in 2011, Mr. Davis supervised Ms.
Bird directly. (Id. ¶ 3.) Lane Morris, Director
of West Valley City's Community Preservation Department,
supervised Mr. Davis. (Reply, Response to Add'l Material
Facts (Add'l Facts) ¶ 3, ECF No. 67.)
2005, Shirlayne George of West Valley City's human
resources department conducted an investigation of Animal
Services. (Opp'n, Facts ¶ 4, ECF No. 62.) Ms.
George's notes from the investigation contained a number
of complaints that Animal Services employees purportedly made
about Ms. Bird. (Reply, Facts ¶ 6, ECF No. 67.)
December 2010, Mr. Davis conducted a performance evaluation
of Ms. Bird and noted a number of areas “need[ing]
improvement”-adaptability, conflict resolution, team
leadership. (Performance Review, ECF No. 59-3; Reply, Facts
¶ 12, ECF No. 67.) At the time, Mr. Morris wanted to
fire Ms. Bird, but Mr. Davis interceded on her behalf,
preventing her termination. (Reply, Facts ¶ 11, ECF No.
67; Appeal Tr. 308:16-309:17, ECF No. 62-12.) Also in
December 2010, following that evaluation, Mr. Davis sent Ms.
Bird a letter outlining a number of issues he had with her
performance, including her difficulty accepting and
implementing direction. (Letter from Davis to Bird, Dec. 21,
2010, ECF No. 59-4; Reply, Facts ¶ 13, ECF No. 67.)
Among other things the letter stated: “When our shelter
was under fire from the animal rights groups regarding the
carbon monoxide chamber, you being a member of management, I
was surprised to find that your public feelings on the
subject were not in line with what both Taylorsville and West
Valley leadership had decided in regards to its use.”
a year later, on October 17, 2011, several news outlets
published articles about a cat who twice survived the
City's attempts to euthanize her in the Animal
Shelter's carbon monoxide chamber. (Reply, Add'l
Facts ¶ 7, ECF No. 67.) Mr. Morris testified that after
those stories ran, his “phone wouldn't stop
ringing” from citizens calling to complain. (Reply,
Add'l Facts ¶ 8, ECF No. 67.) Mr. Morris believed
the press heard about the incident “[b]ecause Karen
told them, or told the veterinarian who told them.”
(Morris Dep. 43:18-44:2, ECF No. 59-5; Reply, Add'l Facts
¶ 8, ECF No. 67.)
that month, on October 26, 2011, the City's public
relations department informed Mr. Davis that a reporter
contacted the City stating he had “received an
anonymous phone call from a person claiming that Kelly Davis
was ordering a mass execution at the shelter because his
shelter is over populated.” (Reply, Add'l Facts
¶ 11, ECF No. 67; Davis Log at ¶ 0225-26, ECF No.
62-8.) Mr. Davis similarly received hundreds of calls from
citizens. (Davis Dep. 186:11-25, ECF No. 59-12.) Concerned
about the leaks, Mr. Davis requested a meeting with Mr.
Morris to discuss them and asked Mr. Morris to include Ms.
Bird in the meeting. (Reply, Add'l Facts ¶ 11, ECF
No. 67; Davis Log at ¶ 0225-26, ECF No. 62-8.) On
November 1, 2011, Mr. Davis and Ms. Bird met with Mr. Morris.
(Id.) In that meeting, Mr. Davis stated he
“felt very strongly” that Ms. Bird leaked the
information. (Id.) On that same day, Mr. Morris told
[I]t's pretty obvious you can't work for [Mr. Davis]
and [Mr. Davis] can't supervise you. . . . I've got .
. . to see what our options are and what we could do. How we
can restructure the shelter, the staff, everything. Because I
don't want to lose either of you. You each have value.
But you two are coming from two separate planets and there
doesn't seem to be any way to get you both into the same
(Bird Dep. 167:21-168:21, ECF No. 59-1.)
November 3, 2011, Ms. Bird filed a formal written complaint
against Mr. Davis with the City's human resources
department. (Opp'n, Facts ¶ 18, ECF No. 62.) That
day Ms. Bird spoke to Ms. George from the human resources
department and said “I can't look at [Mr. Davis] in
the face. So I don't know what kind of resolution there
is.” (Bird Dep. 158:9-160:13, ECF No. 59-1.)
November 9, 2011, Mr. Davis prepared a letter reprimanding
Ms. Bird for two hours of overtime she submitted with her
timecard on October 26, 2011-the same day public relations
told Mr. Davis a reporter received an anonymous phone call
that Mr. Davis planned a “mass execution” at the
Animal Shelter. (Reply, Add'l Facts ¶ 16, ECF No.
67.) In the letter, Mr. Davis stated he did not authorize the
overtime, and Ms. Bird did not seek prior approval. (Letter
from Davis to Bird, Nov. 9, 2011, ECF No. 62-10.) Ms. Bird
only received this one letter of reprimand while working at
November 9th or 10th, 2011, Mr. Davis told Jon Andus, Animal
Services' volunteer coordinator, that the City terminated
Ms. Bird for leaking sensitive information about the shelter
to the press, being insubordinate, and undermining Mr. Davis.
(Appeal Tr. 287:5-288:6, 288:15-22, 292:23-293:11,
300:14-301:4, ECF No. 62-12; Andus post, 2:21 p.m. Nov. 10,
ECF No. 62-11.)
City put Ms. Bird on administrative leave and began an
investigation. (See Appeal Tr. 295:1-14, ECF No.
62-12.) On November 14, 2011, Ms. George, the same human
resources employee who conducted the 2005 investigation,
conducted interviews for the City's investigation.
(Animal Shelter Investigation, Nov. 14, 2011, ECF No. 59-8.)
Ms. George's notes from the investigation include the
following reference: “Rescue groups getting info should
not have from Karen.” (George's Notes, Nov. 14,
2011 at BIRD 0356, ECF No. 59-7.) Ms. George's typed
notes from the investigation list a number of comments
purportedly made by employees concerning Ms. Bird, calling
her “hard to work with, ” claiming she
“belittled” staff, and identifying a
communication problem between Ms. Bird and Mr. Davis. (Animal
Shelter Investigation, Nov. 14, 2011, ECF No. 59-8.)
November 16, 2011, following the investigation, the City sent
Ms. Bird a memorandum identifying possible violations of City
and Department policies and notifying Ms. Bird of an upcoming
pre-disciplinary meeting on November 21, 2011. (Mem. from
Morris to Bird, Nov. 16, 2011, ECF No. 59-9.) The memorandum
noted, among other things, that Ms. Bird had a “history
of insubordination and being subversive to [her] immediate
supervisor at the Animal Shelter.” (Id.) On
November 21, 2011, Ms. Bird attended the pre-disciplinary
meeting with Mr. Morris. (Bird Dep. 188:2-25, ECF No. 62-4.)
On November 30, 2011, Mr. Morris sent Ms. Bird a letter
notifying her the City terminated her for cause effective
November 29, 2011. (Reply, Facts ¶ 27, ECF No. 67.) The
letter did not disclose on what conduct the decision rested.
(Letter from Morris to Bird, Nov. 30, 2011, ECF No. 59-11.)
On December 12, 2011, Mr. Morris sent a follow up letter
clarifying that he terminated Ms. Bird because of her
insubordination and a lack of courtesy to and cooperation
with employees and the public. (Letter from Morris to Bird,
Dec. 12, 2011, ECF No. 59-15.) Mr. Morris swears he
“terminated Ms. Bird for a number of reasons, including
the fact that she had a long history of personal issues with
the employees she supervised, ” but primarily because
of her insubordination toward and unwillingness to work with
Mr. Davis. (Morris Aff. ¶ 6, ECF No. 59-11.)
Morris's affidavit indicates he alone decided to
terminate Ms. Bird. (Morris Aff. ¶ 3, ECF No. 59-11.)
However, Mr. Morris also testified that Mr. Davis generally
“ha[d] a hand” in terminating employees from
Animal Services. (Appeal Tr. 306:25- 307:16, ECF No. 62-12.)
In addition, Mr. Davis acknowledged he and Mr. Morris met on
“many occasions” to discuss the situation with
Ms. Bird, and he assumed Mr. Morris based his decision at
least in part, on those discussions. (Appeal Tr.
239:17-241:2, 281:20-282:7, ECF No. 62-12.) Furthermore, the
West Valley Defendants credit Mr. Davis with preventing Mr.
Morris from terminating Ms. Bird a year earlier, and Mr.
Davis promoted Ms. Bird to manager in the first place.
(Reply, Facts ¶ 11, ECF No. 67; Opp'n, Facts ¶
2, ECF No. 62.)
Bird appealed her termination. (Appeal Letter, Dec. 5, 2011,
ECF No. 59-14.) The West Valley Defendants include a number
of facts regarding Ms. Bird's beliefs about of the
reasons for her ...