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Bird v. West Valley City

United States District Court, D. Utah

September 28, 2017

KAREN BIRD, an individual, Plaintiff,
WEST VALLEY CITY, a political subdivision of the State of Utah, and KELLY DAVIS, in his official and individual capacities, Defendants.


          Evelyn J. Furse Magistrate Judge

         Defendants West Valley City (the “City”) and Kelly Davis (collectively the “West Valley Defendants”) move the Court[1] 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 Summary Judgment.

         The 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.


         The 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. 2016).


         Under 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).


         Examining 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.)

         In 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.[2] (Reply, Facts ¶ 6, ECF No. 67.)

         In 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.” (Id.)

         Almost 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.)

         Later 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 Ms. Bird,

[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 orbit.

(Bird Dep. 167:21-168:21, ECF No. 59-1.)[3]

         On 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.)

         On 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 the City.

         On 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.)

         The 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.)

         On 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.)

         Mr. 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.)

         Ms. 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 ...

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