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Amann v. Office of Utah Attorney General

United States District Court, D. Utah

February 28, 2019

PAUL G. AMANN, Plaintiff,
OFFICE OF THE UTAH ATTORNEY GENERAL, SEAN REYES, and BRIDGET ROMANO, in their official and individual capacities Defendants.


          Jill N. Parrish, United States District Court 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).[1] The court heard oral argument on this motion on February 13, 2019. On the basis of that hearing, the parties' memoranda, a careful review of relevant law, and for the reasons below, defendants' motion is granted in part and denied in part.

         I. BACKGROUND

         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.[2] Defendants removed the action to this court on April 24, 2018, invoking federal question jurisdiction pursuant to 28 U.S.C. § 1331. (ECF No. 2).

         A. Factual Allegations[3]

         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”[4] scheduled for the same date and time as the hearing regarding Mr. Amann's subpoena in Mr. Hanks' case, thereby precluding Mr. Amann from attending the subpoena hearing. During the Garrity interview, the OAG asked Mr. Amann questions about Mr. Hanks' claims.

         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.

         A. UPPEA Claim

         1. Defendants' Motion to Dismiss the UPPEA Claim is Construed as a Motion for Reconsideration

         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 ...

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