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Smethurst v. Salt Lake City Corp.

United States District Court, D. Utah

August 16, 2019

ROBERT SMETHURST, Plaintiff,
v.
SALT LAKE CITY CORPORATION, Defendant.

          MEMORANDUM DECISION AND ORDER GRANTING DEFENDANT'S MOTION TO DISMISS WITH LEAVE TO AMEND

          Jill N. Parrish United States District Court Judge.

         Before the court is Defendant Salt Lake City's (“the City”) Motion to Dismiss for Failure to State a Claim. The City seeks dismissal of Plaintiff Robert Smethurst's (“Smethurst”) first cause of action, which asserts a claim against the City pursuant to 42 U.S.C. § 1983 for violations of Smethurst's Fifth and Fourteenth Amendment procedural due process rights. Smethurst opposes the motion and, in the alternative, requests leave to amend.

         I. BACKGROUND[1]

         Smethurst was a long-time employee of the City. At the time of his termination he was working for the City's Department of Public Utilities. In late 2016, Smethurst, beset by personal difficulties, sought leave pursuant to the Family and Medical Leave Act (FMLA). During early 2017, Smethurst took twelve weeks of FMLA leave, the entire amount to which he was entitled. Nearing the end of his leave, Smethurst contacted the City to explore taking additional time in order to complete a counseling program begun during his leave.

         Smethurst directed his initial inquiry about additional leave to Darlene Harper, the City employee he thought was responsible for leave and leave-related issues. Harper spoke with Michael Morris in the City's Human Resources department (“HR”) about Smethurst's inquiry. Morris, interpreting the inquiry as an inability to return to work at the conclusion of the FMLA leave, drafted a Notice of Intent to Separate Employment Due to Unavailability. Morris sent this notice first to Kelly Brown, a supervisor in the utilities department, for approval and ultimately to Smethurst. Smethurst responded to the notice by making numerous efforts to communicate with the City; some went unanswered, while others were answered in an unresponsive manner. Confused over the City's failure to respond to his inquiries, Smethurst did not return to work at the end of his FMLA leave, prompting Morris to draft a Separation Memorandum, which Brown approved, terminating Smethurst's employment. Smethurst did not receive a pre-termination hearing.

         Following receipt of the Separation Memorandum, Smethurst filed a notice of appeal to the City's Employee Appeals Board (“EAB”). The EAB is a creature of state law, established by Utah Code § 10-3-1106, which is staffed by municipal employees and designated to hear appeals like the one brought by Smethurst. Salt Lake City Ordinance 2.24.060 defines the standard of review that will be applied to the various types of appeal. Where the appeal is from a disciplinary decision, the EAB must apply a “clearly erroneous” standard, asking whether “the department head's decision to impose discipline was clearly erroneous in light of the record viewed in its entirety.” Where the appeal is from a layoff designation, the EAB's review is “limited to whether the city substantially followed its layoff procedures.” And where the appeal is from a termination decision for nondisciplinary reasons, 2.24.060 requires that the EAB consider only “whether the city followed its procedures when it terminated the employee.”

         At a prehearing conference, the City determined that Smethurst's appeal was from a termination decision for nondisciplinary reasons. As a result, the EAB's review was limited to whether the City followed its own procedures in terminating Smethurst. Additionally, the City determined that the EAB panel hearing Smethurst's appeal would be comprised solely of city employees in supervisory positions. Smethurst objected, contending (1) he was terminated for a disciplinary reason (implying that his termination should have been reviewed under the clearly erroneous standard in accordance with City Ordinance 2.24.060) and (2) as a nonsupervisory employee, he was entitled to a panel not entirely comprised of supervisory employees. Smethurst raised these same objections at the hearing but the City overruled them. At the conclusion of the hearing, the EAB determined that the City had followed its own procedures in terminating Smethurst and upheld his termination.

         Smethurst filed suit in this court on January 25, 2018. In his Amended Complaint, filed on August 28, 2018, he alleges three causes of action under federal law and one cause of action under state law. The City's Motion to Dismiss is directed to Smethurst's First Cause of Action in which Smethurst alleges that the City should be held liable under 42 U.S.C. § 1983 for the violation of his Fifth Amendment and Fourteenth Amendment rights to due process in the termination of his public employment. Specifically, Smethurst alleges three procedural deficiencies: (1) the absence of a pre-termination hearing; (2) the lack of a proper post-termination process because the EAB was staffed with only supervisory employees; and (3) the lack of proper post-termination process because the City limited review of his termination appeal to whether the City followed its own procedures.

         The City moves to dismiss Smethurst's Fifth Amendment claim because it is not properly brought against a municipality. Smethurst does not oppose the dismissal of his Fifth Amendment claim and it is therefore dismissed. The City also moves to dismiss Smethurst's Fourteenth Amendment claim, arguing that Smethurst has failed to plead facts supporting a finding that the City may be held liable for the alleged deprivation of Smethurst's due process rights.

         II. ANALYSIS

         A. Legal Standard

         “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)). “At the motion-to-dismiss stage, [the court] must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Albers v. Bd. of Cty. Comm'rs of Jefferson Cty., 771 F.3d 697, 700 (10th Cir. 2014) (quoting Cressman v. Thompson, 719 F.3d 1139, 1152 (10th Cir. 2013)). “[A] court should disregard all conclusory statements of law [in the complaint] and consider whether the remaining specific factual allegations, if assumed to be true, plausibly suggest the defendant is liable.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011).

         B. Elements of a § 1983 Claim

         Section 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party ...

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