ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS
This matter is before the Court on the following motions:
1. “Motion to Dismiss from Defendant Terry Maketa” (DoC. # 28, filed April 30, 2015);
2. “Defendant Presley’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)” (Doc. # 32, filed May 4,2015);
3. “County Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint Pursuant to Fed, R. Civ. P. 12(b)(6)” filed by Defendants The Board of County Commissioners of the County of El Paso (“the BOCC”), Bill Elder,, and Joe Breister (collectively “County Defendants”) (Doc.# 33, filed May 4,2015); and
BACKGROUND
Plaintiffs filed their Second Amended Complaint and Jury Demand on September 21, 2015, alleging claims pursuant to 42 U.S.C. §§ 1983 and 1988 and a claim pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-17. See (Doc. # 64.)
Plaintiffs King, Lincoln, and Gherett allege that, on May 12, 2014, they went to Defendant Maketa’s office and hand delivered an Equal Employment Opportunity Commission (“EEOC”) complaint charging Defendant Maketa and the County with sexual discrimination in the workplace based on sexual favoritism. (Id. at ¶ 12.) The EEOC charge was handed to Defendant Presley. (Id.) The EEOC charge stated that Defendant Maketa granted favorable treatment to female subordinates with whom he had intimate sexual relation's and discriminated against subordinates who refused to engage in intimate sexual relations with him. (Id.) Also on May 12, 2014, Plaintiffs King, Lincoln, and Gherett submitted a written complaint to the Board of County Commissioners requesting an investigation of Defendants Maketa and Presley for hostile work environment, threats, a sexually discriminatory workplace, improper procurement and budget practices, and retaliation for political views and civil 'rights' violations. (Id. at ¶ 13.) Plaintiffs Lincoln, Bang, and Gehrett allege that within three hours of delivering the EEOC complaint and BOCC request for investigation to Defendant Maketa’s office, they were placed on administrative leave. (Id. at ¶ 16.) Plaintiffs Lincoln and King also allege Defendants Maketa and Presley filed internal affairs complaints against them in July and September 2014. (Id. at ¶¶ 21-22.)
Plaintiff Stone alleges Defendant Make-ta looked at Elder’s campaign website on a regular basis to see the names of people listed as supporters'of Elder, saw Plaintiff Stone’s name on' that list, and retaliated against Plaintiff Stone because he supported Elder. (Id. at ¶¶ 42, 92, 94.)
Plaintiff Peck alleges Defendant Maketa asked her to lie to the media, and, when she spoke truthfully instead, she was removed from her position as Lieutenant of Internal Affairs and moved to Lieutenant of Patrol on the-midnight shift. (Id. at ¶¶ 62-63.)
Plaintiffs assert the following claims: (1) a section 1983 claim by Plaintiffs Lincoln, Bang and Gehrett alleging First. Amendment retaliation against all defendants related to the plaintiffs’ filing of the EEOC charge; (2) a section 1983 claim by Plaintiffs Lincoln, King, and Gehrett alleging First Amendment retaliation against all Defendants related to the Plaintiffs’ submission of a request for an investigation by the BOCC; (3) a section 1983 claim by
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6) (2007). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc.,
“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,
The court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc., v. Texas Waste,
ANALYSIS
1) Government or Municipal Liability
The County Defendants argue that Plaintiffs have failed to state any plausible claim for relief against Defendant BOCC. (Doc # 33 at 6-13.)
[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.
Monell,
Here, Plaintiffs’ allegations of an unconstitutional custom or policy maintained by the BOCC or the El Paso County Sheriffs Office are entirely conclusory. Plaintiffs offer only the “formulaic recitation” of a Monell claim, alleging that “El Paso County is liable under § 1983 because the County itself is the moving force behind the Constitutional torts alleged in this complaint and El Paso County’s policy or custom played a part in the violation law [sic] here alleged” (Doc. # 64 at 3) and that “[t]he County is liable because under Monell the actions taken by Maketa and Presley were a policy or custom of the county because they are actions taken by their final policymakers, whether or not those actions conform to the county’s own pre-existing rules” (Id. at ¶¶ 72, 82, 89, 95). Plaintiffs never identify any particular custom or policy under which Defendants Maketa and Presley were acting, nor do they specify how any custom or policy caused Defendants Maketa and Presley to violate Plaintiffs’ constitutional rights. As Iqbal makes clear, such conclusory allegations are insufficient to state a claim.
Plaintiffs section 1983 claims against Defendant BOCC are dismissed.
2) Official Capacity Claims Against Individual Defendants
All of the defendants move to dismiss the official-capacity claims against them. (Doc. # 28 at 3; Doc. # 32 at 4; Doc. # 33, n.6.)
Official capacity claims are considered to be claims for municipal liability and are thus one and the same as suing the county. See, e.g., Kentucky v. Graham,
Thus, the official capacity claims against the individual defendants are dismissed. Moreover, it is clear from the Second Amended Complaint that Plaintiffs assert claims against Defendants Elder and Breister in their official capacities only. See (Doc. #77 at 1, 4.) Thus, Plaintiffs’ section 1983 claims against Defendants Elder and Breister are also dismissed in their entirety.
In the Second Amended Complaint, Plaintiffs Lihcdln, King, and Gehrett assert that they were retaliated against by Defendants Maketa and Presley because they filed an EEOC charge alleging that the El Paso County Sheriffs Office and Defendant Maketa fostered “sexual favoritism which has created a hostile work environment.” (Doc. # 28-1 at 1.) Plaintiffs Lincoln, King, and Gehrett also allege they were retaliated against by Defendants Maketa and Presley because they submitted a BOCC request for investigation alleging a pattern of “troubling practices at the Sheriffs Office.” Defendants Maketa and.Presley argue that these retaliation claims should be dismissed because the issues presented in the EEOC charge and the BOCC request for investigation are not matters of public concern.
‘Although Plaintiffs have asserted separate retaliation claims regarding the EEOC charge and the BOCC request for investigation, the Court disagrees that these are independent retaliation claims. Both the EEOC charge and the BOCC request for investigation were delivered simultaneously,' and Plaintiffs assert that the alleged retaliatory acts were in response to both. Thus, the two are inextricably intertwined. Therefore, the Court consolidates the First and Second Claims into one retaliation claim and will construe the motions to dismiss accordingly.
a) Legal Standard
To make of a prima facie case of retaliation in violation of the First Amendment, a plaintiff must establish: .
(1) he was “engaged in constitutionally protected activity,”
(2) that the defendant’s actions caused him to suffer an “injury that would chill a person of ordinary firmness from continuing to engage in that [protected] activity,” and
(3)that the defendant’s actions “were substantially motivated as a response to his constitutionally protected conduct.”
Nielander v. Bd. of Cnty. Comm’rs,
Courts employ a five-step approach derived from Garcetti and Pickering v. Board of Education,
(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the publicservice are sufficient to outweigh the plaintiffs free speech interests; (4) whether the protected speech was- a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.
Leverington v. City of Colo. Springs,
b) Analysis
In response to the retaliation claims brought by Plaintiffs Lincoln, Gehrett, and King, Defendants Maketa and Presley argue that (1) the speech at issue was not protected because it did not implicate a matter of public concern, (2) that Plaintiffs suffered no adverse employment action, (3) that the balance of interests favor the government employer, and (4) that Defendants’ are entitled to qualified immunity. (Doc. # 28 at 6-8, 11; Doc. # 32 at 8-11.) This Court will address each argument in turn.
(1) Matter of Public Concern
The court must first determine if the Plaintiffs’ speech “involves a matter of public concern.” Dill v. City of Edmond,
Speech that pertains to a public agency’s “discharging its governmental responsibilities” ordinarily will be regarded as speech on a matter of public concern. Connick,
Disclosure of “evidence of corruption, impropriety, or other malfeasance on the part of city officials... clearly concerns matters of public import.” Conaway v. Smith,
As to the EEOC charge, in Woodward, the Tenth Circuit addressed a First Amendment claim in which employees of a county sheriffs department alleged that their supervisors had retaliated against them after they filed formal sexual harassment complaints against a police officer and an undersheriff.
The instant case, however, is distinguishable from Woodward because the EEOC charge alleges that Defendant Maketa “grants considerable favorable treatment [including promotions, pay increases, work assignments, work conditions, training opportunities, and leave] to female subordinates with whom he has sexual relations” and treats “with disfavor female subordinates who have refused to engage in sexual relations with him” (Doc. # 28-1 at 1-2.) It appears that the purpose of Plaintiffs’ EEOC charge was to address both the personal grievances of the male plaintiffs, and the grievances of the female subordinates who allegedly were treated with disfavor and discriminated against when they refused to engage in sexual relations with Defendant Maketa.
Moreover, the BOCC request for investigation alleged “Procurement and Budget Practices Inconsistent with County Policies,” removal of “all of the chain of command review and oversight of the Sheriffs Office budget” that “potentially placets] El Paso County at considerable financial risk,” and “Retaliation for Political Views and Violations of Civil Rights.” (Doc. #28-2 at 1, 5.) These allegations, along with the allegations of sexual misconduct in the EEOC charge, are allegations “of corruption, impropriety, or other malfeasance” by Defendants Makata and Presley. Conaway,
Defendant Maketa also argues that the BOCC request for investigation “was a nullity because under Colorado law the BOCC has no authority to oversee any personnel or employment decisions of the Sheriff.” (Doc. # 28 at 7-8.) This is a red herring. The issue is not whether the BOCC had any authority to do anything with the Plaintiffs’ request for investigation. Rather, the issue is whether Defen
The Court finds that, for purposes of a motion to dismiss, Plaintiffs Lincoln, King, and Gehrett have adequately established that the EEOC Complaint and the BOCC request for investigation both contained speech that was a matter of public concern.
(2) Adverse Employment Action
Plaintiffs Lincoln, King, and Gehrett allege that within three hours of delivering their EEOC Complaint and the BOCC request for investigation, they were placed on administrative leave. (Doc. #64 at ¶ 15-16.) Plaintiffs Lincoln, King, and Geh-rett further allege that Defendant Presley took their phones, iPads, duty weapons, ID cards, badges, and vehicles, which was contrary to office policy concerning administrative leave. (Id. at ¶ 19.) On July 31, 2014, Defendant Presley filed an internal affairs complaint against Plaintiff King (Id. at ¶ 21), and on September 4, 2014, Defendant Maketa filed an internal affairs complaint against Plaintiff Lincoln (Id. at ¶ 22).
Defendants argue that placing Plaintiffs Lincoln, King, and Gehrett on paid administrative leave is not an adverse employment action.
Plaintiffs, citing Baca v. Sklar,
The Tenth Circuit’s footnote in Belcher is instructive:
Implicit in the Pickering test is a requirement that the public employer have taken some adverse employment action against the employee. See Koch v. City of Hutchinson,847 F.2d 1436 , 1440 (10th Cir.1988) (noting that Pickering and its progeny “establish the basic framework for analyzing a claim by a public employee that his or her governmental employer1 made an adverse employment decision in violation of the employee’s First Amendment rights” (emphasis added)). If the action taken by the employer in response to the employee’s speech is inconsequential or has only speculative consequences, there can be no basis for a First Amendment claim. See, e.g., Thomsen v. Romeis, 198 F.3d 1022 , 1027-28 (7th Cir.2000) (holding that written reprimands with only “speculative” consequences do not constitute adverse actions). Defendants argue that the written reprimand issued to Belcher does not constitute an actionable adverse action.
We do not consider Belcher’s reprimand so insignificant as to strip his speech of First Amendment protection. The Supreme Court has explicitly recognized that “deprivations less harsh than dismissal” may trigger First Amendment protection. See Rutan v. Republican Party of Ill.,497 U.S. 62 , 75,110 S.Ct. 2729 ,111 L.Ed.2d 52 (1990). While Bel-cher was not terminated as a result of his speech, the written reprimand speci-fíed “that any more violations of this type will result in more severe disciplinary action up to and or including dismissal from the McAlester Fire Department.” [ ] Threats of dismissal based on an employee’s, speech may constitute adverse employment action. See Rutan,497 U.S. at 64 ,110 S.Ct. 2729 .
In reprimanding Belcher, the fire department chilled any future attempts to contact Council members outside of a public meeting. We conclude that this chilling effect is real, and that Belcher has shown that he was subject to adverse employment action as a result of his speech.
Belcher,
Plaintiffs argue that Defendant Presley’s taking their phones, iPads, duty weapons, ID cards, badges, and vehicles is “more adverse and humiliating than the actions taken in Baca.” The Court agrees. In Baca, the court determined the plaintiff was the subject of a nearly year-long “campaign of retaliation culminating in his resignation.”
When viewed in totality, Defendants’ actions constitute an evident attempt to chill Plaintiffs’ speech. Nielander,
(3) Balance of Interests
Defendants Maketa and Presley also argue that their actions in suspending Plaintiffs Lincoln, King, and Gehrett were justified given the need for a functioning Sheriffs Office. (Doc. # 28 at 10-11; Doc. # 32 at 14-15.)
Specifically, Defendant Maketa argues his need to trust his commanders outweighs the Plaintiffs’ interests in speaking about confidential matters outside the Sheriffs Office. See (Doc. #28 at 10-11.) In support of this argument, Defendant Maketa cites Lytle v. City of Haysville, Kan.,
Here, Plaintiffs allege that the BOCC investigated their complaints, and the “investigation substantiated the complaints made by the Commanders against Maketa and Presley.” (Doc. # 64 at ¶ 24, 27.) Thus, Plaintiffs have alleged a reasonable basis to conclude there was misconduct. These allegations are contradictory to a sheriffs office that is attempting to “promot[e] the efficiency of the public service.” Leverington,
(4) Qualified Immunity
Qualified immunity is an affirmative defense against 42 U.S.C. § 1983 damage claims available to public officials sued in their individual capacities. Pearson v. Callahan,
In resolving a motion to dismiss based on qualified immunity, a court looks at: “(1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of defendant’s alleged misconduct,” Leverington,
Defendants Maketa and Presley argue that it is riot clearly established that the initiation of an investigatiori into allegations of workplace misconduct in retaliation for protected speech violates the First Amendriient. See (Doc. # 28 at 12; Doc. # 32 at 16.) In support of this argument, Defendants cite Churchill v. University of Colorado,
In this case, however, the Court has already determined that Plaintiffs were subjected to more than a mere investigation. Plaintiffs cite to Pickering to support their argument that their First Amendment .rights were clearly established at the time of the unlawful conduct. It is clearly established that public employment cannot be conditioned “on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” Connick,
The court agrees with Plaintiffs Lincoln, King, and Gehrett that it is clearly established that their First Amendment rights were violated if they were subjected to retaliation for their protected speech. Accordingly, the defense of qualified immunity is unavailable.
For the foregoing reasons, Defendants’ motions to dismiss are denied with respect to the first and second claims for retaliation made by Plaintiffs Lincoln, King, and Gehrett.
4) Third Claim for Retaliation — Plaintiff Peck
In the Third Claim for Retaliation, Plaintiff Peck alleges that in 2013:
1. Defendants Maketa and Presley4 “determined to influence the political race for and election of the successor sheriff of El Paso County.” (Doc. # 64 at ¶ 30.)
2. Defendant Elder was, at that time, a known candidate for sheriff who had previously served as a sheriffs officer in El Paso County. (Id. at ¶ 32.)
3. Defendants Maketa and Presley “agreed with each other to concoct and devise[] a plan to discredit Elder as a candidate for sheriff that involved supposedly adverse and negative information about Elder contained in an Internal Affairs (IA) file concerning Elderfs] conduct while he had previously been a sheriffs officer.” (Id. at ¶ 33.)
4. Plaintiff Peck, the officer in charge of the IA unit, discovered that the Elder IA file was missing from the IA unit’sfiles, and she notified her supervisor, who in turn notified Defendant Presley. (Id. at ¶¶ 36-37.)
5. The missing IA file was of public interest in El Paso County, and in January and February of 2014, Defendant Maketa encouraged Plaintiff Peck to speak to the media and “promote a[] narrative that falsely asserted that Elder supporters in the sheriff’s] office had taken the Elder file.” (Id, at ¶¶ 60-61.)
6. Plaintiff Peck spoke to media but spoke truthfully. (Id. at ¶ 62.)
7. Because Plaintiff Peck spoke truthfully, in March 2014, she was removed from her position as Lieutenant of Internal Affairs and moved to Lieutenant of Patrol on the midnight shift. (Id. at ¶ 63.)
Defendant Maketa moves to dismiss Plaintiff Peck’s retaliation claim, arguing Peck’s communications to the media were made in her capacity as head of the Internal Affairs Department and did not implicate matters of public concern, such that the speech does not enjoy First Amendment protection. (Doc. # 28 at 13-14.) Defendant Maketa also argues that Plaintiff Peck suffered no adverse employment action. (Id. at 8-9) Finally, Defendant Make-ta argues that he is entitled to the defense of qualified immunity. (Id. at 11-15.)
a) Legal Standard
The Court described at length the relevant legal standard in its consideration of the retaliation claims brought by Plaintiffs Lincoln, Gehrett, and King. In the interest of brevity, that discussion is incorporated herein by reference.
b) Analysis
(1) Matter of Public Concern and Official Capacity
In response to the motion for dismissal, Plaintiff Peck argues:
[T]he mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee — rather than citizen — speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.
(Doc. # 46 at 12) (citing Lane v. Franks, — U.S. —,
(2) Adverse Employment Action
The Supreme Court has held that employment actions commonly considered serious enough to inflict constitutional injury include refusals to hire, refusals to promote, reprimands, demotions, and discharges. Rutan v. Republican Party of Ill.,
In employment cases, “[t]he clear trend of authority is to hold that a purely lateral transfer, that is a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action.” Ledergerber v. Stangler,
Plaintiff Peck alleges she was transferred from her position as Lieutenant of Internal Affairs on a day shift to a Lieutenant of patrol on the midnight shift. (Doc. # 64 at ¶ 63.) The Court finds Plaintiffs allegation that she was transferred from the day shift to the midnight shift could be construed as a “demotion in form or substance” sufficient to constitute an adverse action. Moreover, Defendant Máketa’s actions appear to have been attempts to chill Plaintiff Peck’s speech. Nielander,
(3) Qualified Immunity
In accordance with the foregoing analysis and for the same reasons described in this Court’s discussion of the first and second claims for retaliation, Defendant Maketa is not entitled to the defense of qualified immunity.
For the foregoing reasons, Defendant Maketa’s motion to dismiss is denied with respect to the third claim for retaliation made by Plaintiff Peck.
4) Fourth Claim for Retaliation-Plaintiff Stone
Plaintiff Stone alleges that in 2013, Defendants Maketa and Presley
The Court again incorporates by reference its discussion of the legal standard for retaliation set forth in its analysis of the first and second claims for retaliation and the instructive standard for adverse action articulated in Belcher. The Court concludes that Plaintiff Stone has alleged facts sufficient to show that an adverse action, specifically an allegedly malicious and frivolous investigation, resulted from his support of Defendant Maketa’s political opponent and that the retaliation, considered in context, was intended to chill speech. Nielander,
For the foregoing reasons, Defendant Maketa’s motion to dismiss is denied with respect to the fourth claim for retaliation made by Plaintiff Stone.
5) Title VII Retaliation Claim Against the County Defendants
Plaintiffs Lincoln, King, and Gehrett assert that the County Defendants retaliated against them by placing them on administrative leave after they submitted their EEOC claim and BOCC request for investigation. (Doc. # 64 at ¶ 107.)
To the extent Plaintiffs assert a Title VII claim against Defendant Elder, Title VII “liability is appropriately .borne by employers, not individual supervisors.” Haynes v. Williams, 88 F.3d 898, 901 (10th Cir.1996). As such, “personal capacity suits against individual supervisors are inappropriate under Title VII.” Haynes,
To establish a prima facie Title VII claim for retaliation, an employee must establish (1) he engaged in protected opposition to discrimination; (2) a reasonable employee would have found the challenged action materially adverse; and (3) a causal connection exists between the protected activity and the materially adverse action. McGowan v. City of Eufala,
The last hurdle Plaintiffs must overcome is pleading that their adverse employment action was connected to the filing of the EEOC charge and submission of the BOCC request for investigation. “A retaliatory motive may be inferred when an adverse action closely follows protected activity. However,' unless the termination is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation.” Anderson v. Coors Brewing Co.,
Plaintiffs Lincoln, King, and Gehrett were placed on administrative leave three hours after delivering the EEOC charge and .the BOCC request for investigation. (Doc. #64 at ¶ 15-16.) The court finds Plaintiffs Lincoln, King, and Gehrett have pled facts satisfying the causation element for a prima facie case of retaliation under Title VIL
6) Outrageous Conduct Claim
Defendants Maketa and Presley also seek to dismiss Plaintiffs’ Outrageous Conduct claim as barred by the Colorado Governmental Immunity Act (“CGIA”). Defendant Presley seeks to dismiss Plaintiffs’ outrageous conduct claim as barred by the Colorado Workers’ Compensation Act.
a) CGIA
The CGIA provides that “no public employee shall be liable for injuries arising out of an act or omission occurring during the performance of his or her duties and within the scope of his or her employment, unless such act or omission was willful and wanton.” Colo. Rev. Stat. § 24-10-105(1). The statute functionally extends the State of Colorado’s sovereign immunity to employees of a municipality. Colo. Rev. Stat. § 24-10-103(4)(a) (discussing purpose of CGIA). .
Whether a plaintiff has pleaded sufficient facts to allege willful and wanton conduct is a matter to be determined by the Court. For purposes of the CGIA, a person engages in “willful and wanton” conduct when that person “purposefully pursued a course of action or inaction that he or she considered would probably result in harm” to the plaintiff. Castaldo v. Stone,
The court finds that Plaintiffs Lincoln, King, Gehrett, Peck and Stone have alleged defendants “purposefully pursued a course of action or inaction that he or she considered would probably result in harm” to them by placing Plaintiffs Lincoln, King, and Gehrett on administrative leave, by filing internal affairs complaints against Plaintiffs King and Lincoln, and by transferring Plaintiff Peck to a position on the night shift. Moreover, the court finds that Plaintiff Stone has sufficiently alleged outrageous conduct by Defendants Maketa and Presley by their instituting a criminal investigation against Plaintiff Stone based on an allegedly concocted story about a missing Internal Affairs file.
Defendants Maketa and Presley’s motions to dismiss Plaintiffs’ outrageous conduct claim as barred by the CGIA are denied.
b) Colorado Workers’ Compensation Act
Defendant Presley argues that the Plaintiffs’ -outrageous conduct claim is barred by the Colorado Workers’ Compensation Act because Plaintiffs have alleged Defendant Presley’s conduct “was in the course and scope of her employment as Undersheriff.” (Doc. # 32 at 19.)
“The Workers’ Compensation Act provides exclusive remedies for employees suffering work-related injuries and occupational diseases.” Horodyskyj v. Karanian,
[C]o-employee immunity for intentional wrongs is strictly limited to injuries sustained where both the tort feasor and the victim are acting within the courseof their employment. Thus, the deterrent function of tort liability would be preserved as to those acts between employees not “arising out of and in the course of’ the employment relation.
Kandt,
In support of her argument, Defendant Presley relies on Plaintiffs’ description in the “Parties” section of the Complaint that Defendant Presley “at all relevant times was the undersheriff for the county of El Paso” and ‘[a]ll of [Defendant] Presley’s conduct occurred as [Defendant Presley was acting as the undersheriff_” (Doc. # 9 at ¶ 5; Doc. # 64 at ¶ 8.) In Kandt, the court explained that
the district court normally would have been required to scrutinize [the defendant’s] acts to determine, under the appropriate standard, whether he was acting in the course of his employment .... However, the plaintiff specifically alleged in her complaint that [the defendant] “at all times referenced herein was employed by and acting within the scope of his employment as an employee for the defendant.”
Kandt,
In this case, as to both Defendant Presley and Maketa, Plaintiffs allege that Defendants were, at all relevant times, acting as the undersheriff and the sheriff, respectively, for El Paso County. (Doc. # 64 at ¶¶ 7, 8.) Moreover, despite twice amending their complaint, Plaintiffs fail to allege that either Defendant Presley or Defendant Maketa was acting outside the scope of her or his employment. See Kandt,
As such, Plaintiffs’ outrageous conduct claim asserted against Defendants Maketa and Presley are dismissed.
Based on the foregoing analysis, it is ORDERED:
1. The “Motion to Dismiss from Defendant Terry Maketa” (Doc. # 28) and “Defendant Presley’s Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)” (Doc. #32) are GRANTED in part and DENIED in part. The official-capacity claims against Defendants Maketa and Presley are dismissed. Plaintiffs’ Fifth Claim for Relief for outrageous conduct asserted against Defendants Maketa and Presley is dismissed. Defendants Maketa and Presley’s motions are denied in all other respects.
2. The “County Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6)” (Doc. # 33) is GRANTED. Plaintiffs’ First, Second, Third, and Fourth Claims for Relief asserted against Defendants Board of County Commissioners of El Paso County and Bill Elder are dismissed.
3. The “County Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6)” (Doc. # 85) is GRANTED in part and DENIED in part. Plaintiffs’ Sixth Claim for Relief for Title VII retaliation asserted against Defendant Elder is dismissed. The motion is denied in all other respects.
5. The case will proceed as follows:
a. One consolidated claim for relief for retaliation related to the EEOC complaint and the BOCC request for investigation by Plaintiffs Lincoln, King, and Gehrett against Defendants Maketa and Presley;
b. Plaintiff Peck’s Third Claim for Relief for retaliation asserted against Defendant Maketa;
d. Plaintiffs Lincoln, King, and Gehrett’s Sixth Claim for Relief for Title VII retaliation asserted against Defendant Board of County Commissioners of the County of El Paso.
Notes
. All of the motions to dismiss except the County Defendants’ Motion to Dismiss Plaintiffs’ Second Amended Complaint, which added a claim for retaliation under Tide VII, were filed and briefed prior to the filing of the Second Amended Complaint. However, the parties stipulated that "the briefing concerning the various pending motions to dismiss [filed with the Court prior to the Second Amended Complaint] shall apply to any claims addressed in those motions which remain in the Amended Complaint, with no need for further briefing.” See (Doc. #61 at 2.)
. For the same reasons, the instant case is distinguishable from the other cases cited by Defendants Maketa and Presley in support of their argument that the plaintiffs’ speech was not a matter of public concern. See David v. City & Cnty. of Denver,
. This Court in not aware of any Tenth Circuit decision addressing whether placing an employee on paid administrative leave during the pendency of an investigation is an adverse action. Defendant Maketa cites Carrero v. Robinson, Civil Action No. 05-cv-02414-MSK-CBS,
. The Third Claim for Retaliation names only Maketa as a defendant.
.. The Fourth Claim for Retaliation names only Maketa as a defendant.