Opinion
Case No. 2:99-CV-688C
December, 2000
ORDER
Brad Taysom, the remaining Plaintiff in this case, has brought this action under 42 U.S.C. § 1983 against Alpine City, Highland City, the Alpine Police Department, and various officials of the Alpine Police Department. Taysom alleges that the Defendants violated his constitutional rights in connection with disciplinary action taken against him, including a temporary suspension from his employment as a police officer with the Alpine Police Department.
This case is now before the court on the parties' cross-motions for summary judgment on the remaining claims from Taysom's second amended complaint. In his second amended complaint, Taysom initially asserted a number of state and federal causes of action. However, Taysom has given up all claims except three: (1) Fourth Amendment illegal search and seizure, (2) Fourteenth Amendment procedural due process, and (3) Fourteenth Amendment equal protection.
On November 16, 1999, Taysom filed a proposed second amended complaint but withdrew his motion for leave to file the second amended complaint on December 3, 1999. Nevertheless, counsel for both parties represented to the court at the summary judgment hearing that they assumed that the claims at issue in this case stemmed from the second amended complaint and that they did not object to the filing of the second amended complaint. Accordingly, the court grants Taysom's motion to file his second amended complaint.
Although Taysom's counsel stated at the hearing that Taysom now chose to maintain his state law claims, Taysom had waived these claims in his opposition memorandum, stating that "all other claims other than those outline hereafter are waived." (See Pl.'s Mem. in Opp. to Defs.' Mot. for Summ. J. at 12.) Since Taysom has waived those claims, the court considers only the three causes of actions found to be remaining in this case.
For the reasons outlined below, the court grants Defendants' motion for summary judgment in part and denies Taysom's cross-motion for summary judgment.
Background
Taysom was employed as a police officer by the Alpine Police Department between 1994 and 1999. On May 14, 1996, Taysom and his direct supervisor, Defendant Kim Collins, were involved in an argument over Taysom's alleged failure to respond to a radio dispatch. On May 17, 1996, Defendant John Lilly, the Chief of Police of the Alpine Police Department at the time, placed Taysom on administrative leave without pay, pending an investigation into Taysom's alleged misconduct.
Lilly prepared a memo informing Taysom of his administrative leave, and Collins delivered the memo to Taysom. When he delivered the memo, Collins directed Taysom to clean out his desk while he watched. One of the drawers in Taysom's desk was locked, and only Taysom and one other officer had a key to this drawer. When Taysom opened the locked drawer, Collins saw audio tapes in the drawer. Collins did not know what was on the tapes but ordered Taysom to give them to him. Taysom told Collins that the tapes were his personal property and demanded a property sheet for the items. Collins refused and took the tapes.
On May 23, 1996, Lilly held an initial hearing to consider whether Taysom ought to be disciplined for his conduct on May 14, 1996. Lilly denied Taysom's request to be represented by an attorney at the hearing. At the hearing, Lilly presented Taysom with a waiver form which informed Taysom of his Fifth and Fourteenth Amendment right against self-incrimination. The form stated that "if you do answer [the questions presented to you at the pre-termination hearing], neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent departmental action." (Ex. 5, attached to Aff. of Brad Taysom in Opp. to Defs.' Mot. for Summ. J. ("hereinafter Aff. of Taysom").)
Both parties refer to the hearing held by Lilly on May 23, 1996, as a "pre-termination" hearing. More accurately, this hearing was an initial, pre-suspension hearing.
At the conclusion of the hearing, Lilly stated that he had found substantial evidence supporting the charge that Taysom was guilty of "neglect of duty" and "insubordination" in violation of the City of Alpine's policies, and of "displaying reluctance to properly perform duties, or acting in a manner tending to bring discredit upon yourself and the department" in violation of the Alpine Police Department's policies. ("Notice of Decision Regarding Allegation of Employee Misconduct," attached as Ex. E to Defs.' Mem. in Supp. of Mot. for Summ. J.) Lilly suspended Taysom for four days without pay to be followed by an "interim reporting period" of ninety days, during which time Taysom would have to work the day shift. (See id.)
On July 11, 1996, the Alpine City Grievance Board held a second hearing to review Lilly's decision. At this appeal hearing, Taysom was represented by counsel and was given full opportunity to present evidence and examine witnesses. Officer James Cowan was one of the members of the appeal board. The appeal board affirmed Lilly's decision and upheld Taysom's suspension. Taysom then requested a further appeal before the Alpine City Council, and a hearing was scheduled for October 8, 1996. That hearing was postponed, apparently at the request of Taysom and his attorney, and has never taken place.
On June 28, 1996, while Taysom was still on interim reporting, Lilly announced that there was an opening for a corporal's position in the Alpine Police Department. Taysom was the senior patrolman in the Alpine Police Department at that time and ordinarily, according to the customary practice, would have received the position. This time, however, Lilly announced that the position would be filled on the basis of the results of a test. The Alpine Police Department had never before used test results to determine who would get a promotion, nor has it since. Lilly refused to allow Taysom to take the test, on the ground that he was ineligible because he was on interim reporting. Cowan ultimately was given the corporal position.
Standard of Review
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The party seeking summary judgment bears the initial burden of demonstrating that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). In applying this standard, the court must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1552 (10th Cir. 1997).
Once the moving party has carried its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)); see also Gonzales v. Millers Cas. Ins. Co., 923 F.2d 1417, 1419 (10th Cir. 1991). The non-moving party must set forth specific facts showing a genuine issue for trial; mere allegations and references to the pleadings will not suffice. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Discussion
A. Fourth Amendment Claim
Taysom contends that Collins's taking of the audio tapes was an illegal search and seizure in violation of the Fourth Amendment. Although the Defendants assert that Collins's actions were not a "search" under the Fourth Amendment because it was Taysom himself who took the audio tapes from his own desk, there is little question but that Taysom cleaned out his desk at Collins' direction. Moreover, it is undisputed that once Collins saw the tapes, he physically took possession of them. Collins' actions, therefore, constituted a search and seizure under the Fourth Amendment.
To prove that Collins' search and seizure violated the Fourth Amendment, Taysom must show that (1) he held a reasonable expectation of privacy in the area searched, and (2) the search was not reasonable under the circumstances. See O'Connor v. Ortega, 480 U.S. 709 (1987).
1. Reasonable expectation of privacy
The determination of whether an individual has an expectation of privacy in a searched area involves two inquiries. First, the individual challenging the search "must show a subjective expectation of privacy in the area searched, and second, that expectation must be one that `society is prepared to recognize as `reasonable.''" United States v. Anderson, 154 F.3d 1225, 1239 (10th Cir. 1998).
In this case, Taysom has demonstrated a subjective expectation of privacy through his testimony that he considered the items in the locked drawer to be "personal property." Taysom's testimony that he told Collins that he considered Collins's demand for the tapes to be a constitutional violation is further evidence of his subjective expectation of privacy. (Aff. of Taysom at 3.)
Taysom has also demonstrated that his expectation of privacy was a reasonable one. He has testified that the desk drawer in which his audio tapes were held contained only personal items. (See Aff. of Taysom at 2.) The drawer was kept locked, and only Taysom and one other officer — not Collins or any other supervisor — had a key. Where an office or work space is used only for the private use of the employee or where the employee stores personal items in the office or work space, it is generally an indication that the employee's expectation of privacy is reasonable. See O'Connor, 480 U.S. at 715, 718. The Defendants have offered no evidence that the desk drawer in which the tapes were kept was within the control of Taysom's supervisors and thus indicative of a public rather than private work space. See id. Therefore, Taysom had both a subjective and a reasonable expectation of privacy regarding the tapes kept in the locked drawer of his desk.
2. Reasonableness of search
A search and seizure is illegal only if it is unreasonable. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619 (1989). An intrusion on the constitutionally protected privacy interests of a public employee is judged by the standard of "reasonableness under all the circumstances. Under this reasonableness standard, both the inception and the scope of the intrusion must be reasonable." O'Connor, 480 U.S. at 725-26.
In O'Connor, a case factually similar to this one, the Supreme Court held that a search of a public employee's office would be reasonable if the employer had a reasonable belief that it would discover state property, and if the scope of the intrusion was reasonable in light of this justification. See id. at 728. If, however, the search measures are not reasonably related to the purpose of the search, or if the search was "excessively intrusive" in light of the nature of the claimed employee misconduct, the search will be deemed unreasonable. O'Connor, 480 U.S. at 726.
Given that Taysom had recently been suspended for insubordination, the Defendants contend that Collins "had reasonable grounds for suspecting that these tapes would turn up evidence showing that Mr. Taysom was guilty of work-related misconduct." (Defs.' Mem. in Supp. of Mot. for Summ. J. at 28.) Courts have held that an employer's investigation into an employee's alleged violations of workplace rules can represent a reasonable justification for a search of that employee's private work area. See New Jersey v. T.L.O., 469 U.S. 325, 342 (1985) (holding that search is constitutional where there is reasonable grounds for believing that search would turn up evidence of rules violations); see also Fitzgerald v. Caldera, 34 F. Supp.2d 1299, 1307 (N.D.Okla. 1999). Defendants raise this justification, however, without any evidentiary support. There is no evidence at all in the record about Collins's reasons for taking the tapes. Because there is a factual dispute regarding Collins's motive for the seizure, summary judgment cannot be granted for either party. See O'Connor, 480 U.S. at 727 (finding summary judgment inappropriate where there was a factual dispute regarding the employer's motivation for the search); Fitzgerald, 34 F. Supp.2d at 1307 n. 5 ("In general, the `unreasonableness' of the search and seizure is a factual question precluding summary judgment.").
3. Qualified Immunity for Fourth Amendment Claim
Collins asserts that, as a municipal employee, he is entitled to qualified immunity on all of Taysom's § 1983 claims. The doctrine of qualified immunity protects government officials performing discretionary functions so long as their conduct does not violate clearly established federal rights. See Tonkovich v. Kansas Bd. Of Regents, 159 F.3d 504, 516 (10th Cir. 1998). Once a defendant pleads qualified immunity, the plaintiff "bears a heavy two-part burden." Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). First, the court must determine "whether the plaintiff has sufficiently alleged that the defendant violated a statutory or constitutional right." Tonkovich, 159 F.3d at 516. Second, if the plaintiff shows a violation of a federal right, the court must determine "whether the right was clearly established such that a reasonable person in the defendant's position would have known that his or her conduct violated that right." Id.
As discussed above, a question remains whether Taysom's Fourth Amendment rights were violated. The court thus cannot resolve the first prong of the qualified immunity analysis at this time. See id. (indicating that court is to resolve the first prong of the qualified immunity analysis before proceeding to the second). The court therefore reserves ruling on Defendants' assertion of qualified immunity; Defendants may reassert qualified immunity once further evidence has been presented by the parties.
4. Liability of the City of Alpine
Taysom argues that because Collins was an employee of the City of Alpine, the City of Alpine is liable for his allegedly unconstitutional search. In order to impose liability on a municipality in a § 1983 case, a plaintiff must identify a policy or custom that caused his or her injury. See J.B. v. Washington County, 127 F.3d 919, 923 (10th Cir. 1997) (addressing county's liability following county sheriff's removal of child from home during child abuse investigation). The actions of a government's authorized decision maker, "tailored to a particular situation and not intended to control decision in later situations," may be deemed to represent official government "policy" for purposes of liability under § 1983. Pembaur v. Cincinnati, 475 U.S. 469, 481 (1986). This is true whether the decision maker's action is taken only once or repeatedly. Id. However, "[m]unicipal liability attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered." Id.
Here, the City of Alpine can be liable for Collins's actions only if Collins was a decisionmaker authorized to establish final government policy for the City of Alpine. Whether an official has final policymaking authority is a matter of state law. Id. at 482. Under Utah law, a police officer is typically not considered a policymaker whose decisions can bind the city for whom he or she works. See J.H. v. West Valley City, 840 P.2d 115, 121 (Utah 1992). Were Collins acting merely as an Alpine Police sergeant, his usual rank, his actions could not confer § 1983 liability upon the City of Alpine.
But Taysom has produced evidence that immediately before Collins seized the tapes, Collins announced that he was acting as the "Acting Chief of the Alpine Police Department, acting in the stead of Chief Lily [sic]." (Aff. of Taysom at 2.) If, in fact, Collins's actions were carried out while he was acting as a chief of police or under instructions from Chief Lilly, the City of Alpine would be liable for those actions. The Tenth Circuit has held that, in Utah, a county sheriff has sufficient decisionmaking authority to bind the county in a § 1983 case. See J.B., 127 F.3d at 924 n. 5. Under Utah state law, "a chief of police has the same authority as the sheriff within the boundaries of the municipality of appointment." Utah Code Ann. § 10-3-913.
The claim that Collins was acting as "Acting Chief," however, appears only in Taysom's affidavit; neither party has submitted other evidence on the issue. The scope of Collins' actual authority on May 17, 1996, therefore, remains unclear. With this material factual issue unresolved, summary judgment cannot be granted on the question of the City of Alpine's liability for Taysom's Fourth Amendment claim.
B. Procedural Due Process
Taysom maintains that the Defendants violated his procedural due process rights in connection with his suspension from the Alpine Police Department. The procedural protections of the Due Process Clause apply when the government has deprived an individual of an interest in liberty or property. See Board of Regents v. Roth, 408 U.S. 564, 569 (1972). The existence of a property interest is determined by reference to "existing rules or understandings that stem from an independent source such as state law." Id. at 577; accord Calhoun v. Gaines, 982 F.2d 1470, 1473 (10th Cir. 1992). Under Utah law, a police officer in a city police department may be terminated or suspended only for cause. See Utah Code Ann. § 10-3-1012. Public employees who can be fired only for cause have a constitutional property interest in their employment and may not be terminated without due process. See Gilbert v. Homar, 520 U.S. 924, 928 (1997). Thus, Taysom had a property interest in his suspension from the Alpine Police Department. See Lucas v. Murray Civil Serv. Comm'n, 949 P.2d 746, 752-53 (Utah 1997) (holding that city police officer has property interest with regards to termination).
It is not clear that Taysom was even entitled to a hearing before he was suspended. Although an initial hearing is required before a public employee is terminated, the Supreme Court has specifically held that, under certain circumstances, due process does not require a hearing before a public employee's suspension. See Gilbert v. Homar, 520 U.S. 924, 929-34 (1997). Without deciding whether Taysom was legally entitled to a pre-suspension hearing, the court concludes that the initial hearing Taysom received was constitutionally sufficient.
Defendants contend that Taysom's due process claims should be dismissed because, after he appealed his suspension to the City Grievance Board, he failed to avail himself of city grievance procedures which allowed him a second appeal to the Alpine City Council. Taysom's failure to exhaust available administrative remedies, Defendants argue, deprives this court of subject matter jurisdiction. This argument is unpersuasive because exhaustion of state administrative remedies is not a prerequisite to bringing suit in federal court under § 1983. See Patsy v. Board of Regents, 457 U.S. 496, 516 (1982); Hopkins v. Oklahoma Pub. Employees Retirement Sys., 150 F.3d 1155, 1159 (10th Cir. 1998). The court therefore finds that it has subject matter jurisdiction over Taysom's claims.
1. The May 23 Hearing
Taysom claims that his due process rights were violated by Chief Lilly at the May 23, 1996 hearing. Specifically, Taysom points to the following actions as violative of due process: (1) Lilly's refusal to permit Taysom to be represented by an attorney; (2) Lilly's failure to inform Taysom of the precise charges against him; (3) Lilly's alleged prejudging of Taysom's guilt; (4) Lilly's alleged use of incriminating statements made by Taysom as evidence of Taysom's misconduct; and (5) Church's alleged contribution to the decision to discipline Taysom, despite an apparent conflict of interest.
An initial hearing, given before disciplinary action is taken, "should be an initial check against mistaken decisions" and "need not be elaborate." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1984). The only elements required in such a hearing are "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. . . . To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee." Id. at 546 (citations omitted).See also Saavedra v. City of Albuquerque, 73 F.3d 1525, 1533 (10th Cir. 1996); Calhoun v. Gaines, 982 F.2d 1470, 1476 (10th Cir. 1992). The constitutional requirements of a pre-termination "opportunity to respond" are minimal so long as an extensive post-termination hearing is available. See Loudermill, 470 U.S. 532, 545 (1985); Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998) ("[A] plaintiff is not entitled to an extensive or formal pre-termination hearing if there are adequate post-termination procedures.")
a. Lack of attorney representation
Taysom claims that Lilly's denial of Taysom's request to have an attorney represent him during the pre-termination hearing violated his constitutional right to due process. "Even in the public employment context, an employee has no constitutional right to counsel at a pre-termination hearing." White v. Health Midwest Dev. Group, 889 F. Supp. 1439, 1445 (D.Kan. 1995), citing Panozzo v. Rhoads, 905 F.2d 135, 140 (7th Cir. 1990). Although a public employee does have the right to representation at a post-termination hearing, see McClure v. Independent Sch. Dist. No. 16, 2000 WL 1480369 at *3 (10th Cir. Oct. 6, 2000), Taysom does not dispute that he was allowed representation by an attorney during his post-termination hearing before the appeal board. Taysom's constitutional right to due process was not violated, therefore, by his inability to have counsel represent him at the pre-termination hearing. See Saavedra, 73 F.3d at 1533 (affirming, without comment, trial court's ruling that no due process violation had occurred where a plaintiff was denied representation at a pre-termination hearing but allowed representation in a subsequent post-termination hearing).
b. Prior notice
Before the May 23, 1996 hearing, Taysom received a letter from Lilly stating that the pre- termination hearing would "address the charges of dereliction of duty and insubordination on May 14, 1996." (Ex. 2, attached to Aff. of Taysom.) "Insubordination" is a specific cause for disciplinary action under the Alpine City Policy. (Ex. 3 at § 1(2)(B), attached to Pl.'s Mem. in Opp.) The section regarding "dereliction of duty" in the Alpine Police Department Policy and Procedure manual, however, contains thirteen subparts, only one of which Taysom was eventually found to have violated. (Ex. 3, attached to id.) Taysom alleges that, because he was not informed of which subpart he was charged with violating, his due process right to notice was breached.
Due process requires that a public employee receive notice of the charges against him before a pre-termination hearing is held. See Loudermill, 470 U.S. at 545; Saavedra, 73 F.3d at 1533. The notice given, however, need not be highly detailed. For example, "[a] brief face-to-face meeting with a supervisor provides sufficient notice and opportunity to respond to satisfy the pretermination due process requirements of Loudermill." West v. Grand County, 967 F.2d 362, 368 (10th Cir. 1992).
As noted above, Lilly's letter referred Taysom to the precise section of the City of Alpine's policy manual regarding the charge of "insubordination." With regards to the charge of "dereliction of duty," the letter Taysom received was sufficient to put him on notice that he would have to defend his actions of May 14, 1996, against charges that he failed to adequately perform his job. Moreover, "gross neglect of duty or refusal to comply with lawful instruction" represents a specific cause for disciplinary action under the policies of the City of Alpine (Ex. 3 at § 1(2)(A), attached to Aff. of Taysom.) Taysom's suspension was based in part upon his violation of this section. (Ex. 6, attached toid.) Although the letter received prior to his initial hearing used the wording "dereliction" of duty, rather than "neglect" of duty, the wording of these two are sufficiently close that Taysom should have been aware that the City policy against neglect of duty was at issue. The court thus finds that the notice Taysom received prior to his initial hearing was constitutionally sufficient.
c. Prejudging Taysom's guilt
Taysom alleges that Chief Lilly had determined that Taysom was guilty of the charge even before Taysom was allowed to present his side of the story. Taysom points to Lilly's deposition testimony, where Lilly made the following comments concerning his consideration of the evidence against Taysom: "Initially, when I looked at all the information that I had, I felt that Officer Taysom should be terminated"; "And it was felt initially after reviewing the tapes between dispatch and Officer Taysom that I would terminate him." (Dep. of John Lilly at 37:8- 16, 106:14-20, attached as Ex. 5 to Second Aff. of Brad Taysom.)
But the evidence on which Taysom relies does not support his charge. In both deposition statements cited by Taysom, Lilly stated that he only "initially" had an impression of Taysom's guilt, rather than a final impression of Taysom's guilt. Further, in light of the relatively lenient standards required of the May 23 hearing, there is nothing in Lilly's initial review of the evidence before the commencement of the pre-termination hearing which would violate Taysom's due process rights.
d. Use of incriminating statements
Before the pre-termination hearing began, Lilly had Taysom sign a document which purported to describe Taysom's rights regarding self-incrimination. The document read: "if you do answer, neither your statements nor any information or evidence which is gained by reason of such statements can be used against you in any subsequent departmental actions." (Ex. 5, attached to Aff. of Taysom.) Taysom alleges that statements he made during the May 23 hearing were used against him by Lilly in violation of Taysom's right against self-incrimination which this form purported to establish.
In Garrity v. New Jersey, 385 U.S. 493, 500 (1967), the U.S. Supreme Court held that a public employee cannot be compelled to waive his Fifth Amendment privilege against self-incrimination through threats of termination. Because they are accountable to the public, a public employee can be compelled to make statements "specifically, directly, and narrowly relating to the performance of his official duties." In re Grand Jury Subpoenas Dated Dec. 7 and 8, Issued to Bob Stover, Chief of Albuquerque Police Dept., 40 F.3d 1096, 1101 (10th Cir. 1994). These statements, however, cannot be used in a subsequent criminal investigation against the public employee. See Garrity, 385 U.S. at 500; In re Grand Jury Subpoenas, 40 F.3d at 1102. Although Taysom challenges a statement made in the Garrity warning presented to him by Lilly, he concedes that Garrity itself does not apply to this case because Taysom was not made the target of a subsequent criminal investigation.
The form which Taysom signed, however, promised only that incriminating statements would not be used against Taysom in a "subsequent" departmental action. Taysom has alleged only that his statements were used against him in a departmental action which was already underway — his suspension for allegedly failing to respond to the dispatch call on May 14, 1996. As such, Taysom has failed to demonstrate that Lilly breached Taysom's rights regarding self- incrimination.
e. Church's Role
Taysom alleges that Church, who had previously represented Taysom in an unrelated civil action, participated in the decision to discipline him, and that this represented a conflict of interest. Church has testified, however, that, when he learned that Taysom was being disciplined by the police department, he recognized a potential conflict of interest and referred the police department to other counsel. (See Dep. of David Church at 13:1-20, 15:12-20, attached as Ex. F to Defs.' Mem. in Supp. of Mot. for Summ. J.) Taysom has failed to raise any evidence that would contradict Church's testimony.
Based on the above, the court concludes that Defendants did not violate Taysom's due process rights in the May 23 hearing.
2. The Second Hearing
Taysom also claims that his due process rights were violated during his the second hearing held by the Alpine City Grievance Board. Specifically, Taysom claims that (1) the appeal board's decision to uphold his suspension was based on new evidence which was not considered by Lilly at the pre-termination hearing; (2) the appeal board's reliance on a "substantial evidence" standard was improper; (3) the appeal board was not fully informed of the punishment Taysom had received from Lilly; (4) the appeal board was not impartial; and (5) he was denied a second appeal to the Alpine City Council.
a. Consideration of new evidence
Taysom claims that the appeal board violated his due process rights by basing its decision on new evidence which was not considered by Lilly during the May 23 hearing. Although Taysom's pleadings refer to this alleged new evidence, Taysom has never identified precisely what new evidence the board considered or how that evidence compromised his rights. Moreover, even had the appeal board considered new evidence, Taysom has failed to explain how this would represent a violation of due process or point to case law supporting his argument. Before an individual may be finally deprived of a property interest, due process requires a full post-termination evidentiary hearing. See Calhoun v. Gaines, 982 F.2d at 1470, 1476 (10th Cir. 1992). Consideration of all available evidence, even "new" evidence, would appear to be consistent with the appeal board's obligation to conduct a full evidentiary hearing.
b. Use of a "substantial evidence" test
Taysom claims that the appeal board's use of a "substantial evidence" test rather than a "preponderance of the evidence" standard violated due process. Under Utah law, an appeal board is required to "fully hear and determine the matter which relates to the cause for the discharge or transfer." Utah Code Ann. § 10-3-1106(2). This involves a two-part inquiry: (1) whether the facts support the charge made by the department head, and (2) whether the charges warrant the sanctions imposed by the department head. See In re Discharge of Jones, 720 P.2d 1356, 1361 (Utah 1986). The appeal board followed this framework, since it considered "whether Chief Lilly's determination that disciplinary action was warranted and supported by the evidence . . ." (See Ex. G, attached to Defs.' Supplemental Mem. in Supp. of Mot. for Summ. J.) As such, the evidentiary standard used by the appeals board was legally sufficient.c. Appeal board was not fully informed of Taysom's punishment
Taysom alleges that the appeal board was not informed that one consequence of Taysom's suspension would be his inability to apply for the job opening within the police department. He argues that the appeal board could not have made an informed judgment on the question of whether the severity of Taysom's punishment was warranted. But Taysom had the opportunity to cross-examine Lilly and others at the hearing. Taysom has testified that he was informed that Lilly would not permit him to take the test for the corporal position sometime before the appeal board convened on July 11, 1996. (See Aff. of Taysom at 6.) Had Taysom wanted the fact that he would not be allowed to apply for the corporal position to be considered by the appeal board, he could have raised the issue himself.
d. Impartiality of the appeal board
The presence of a biased official in an adjudicatory hearing deprives the litigant of a fair tribunal, a key element of due process. See Gleason v. Board of County Com'rs of Weld County, 620 F. Supp. 632, 635 (D.Colo. 1985), citing Miller v. City of Mission, Kansas, 705 F.2d 368 (10th Cir. 1983); see also McClure v. Independent School District No. 16, 2000 WL 1480369 at *8 (10th Cir. Oct. 6, 2000). "Because honesty and integrity are presumed on the part of a tribunal, there must be some substantial countervailing reason to conclude that a decisionmaker is actually biased with respect to factual issues being adjudicated." See Tonkovich, 159 F.3d at 518. Typically, in order to show that a decisionmaker was biased, the plaintiff must raise evidence that the decisionmaker "had the kind of personal or financial stake in the decision that might create a conflict of interest." Hicks v. City of Watonga, 942 F.2d 737, 747 (10th Cir. 1991).
Taysom has made out a prima facie case by raising evidence suggesting that Officer Cowan, one of the officials who sat on the appeal board that heard Taysom's case, had a financial stake in the outcome of the appeal hearing. Officer Cowan eventually received the promotion to the available corporal position. According to Taysom, Cowan thus had a direct interest in ensuring that the disciplinary action against Taysom was not set aside, as Cowan's promotion depended in part on Taysom's ineligibility for the corporal position. Although Taysom does not allege that the other members of the appeal board were biased, the presence of even one biased official can taint a review board and violate due process rights. See id. at 748.
Neither party has presented sufficient evidence on this question to permit summary judgment to be granted. Taysom has submitted no evidence showing that at the time Cowan sat on the appeal board which considered Taysom's suspension, Cowan had already taken or had plans to take the advancement test and that he knew that Taysom would likely receive the promotion if his suspension was not upheld. On the other hand, the Defendants have presented no evidence demonstrating that Cowan did not consider Taysom to be a competitor for the desired promotion.
The Defendants contend that, even if Cowan was a biased adjudicator, Taysom waived his right to challenge the appeal board's impartiality by failing to contemporaneously object to Cowan's presence on the board. A claimant who fails to object to the alleged partiality of an appeal board is viewed as having waived that objection. See West v. Grand County, 967 F.2d at 370. "A claim of disqualifying bias or partiality . . . must be asserted promptly after knowledge of the alleged disqualification."Gleason, 620 F. Supp. at 635, citing Duffield v. Charleston Area Med. Ctr., Inc., 503 F.2d 512, 515 (4th Cir. 1974). Defendants have not shown that Taysom had knowledge of Cowan's alleged bias — Cowan's alleged desire to ensure that Taysom remained suspended so that he would be more likely to receive the promotion to the position of corporal — at the time the appeal board hearing was held. Taysom's hearing before the appeal board occurred on July 11, 1996, approximately two weeks after Lilly announced the job opening for the corporal position. And there is no evidence that on July 11 Taysom knew or should have known that, if his suspension was upheld, the promotion was likely to fall to Cowan.
Accordingly, summary judgment on this issue is denied for both parties.
e. Appeal to the Alpine City Council
Taysom contends that he was denied a second appeal of his suspension to the Alpine City Council. Both parties agree that Taysom never received a hearing before the city council. However, Taysom's own attorney canceled the hearing after it had been originally scheduled and then failed to contact the city council to have the hearing once again placed on the agenda. Taysom acknowledges that he "was not aware what my counsel was doing to hold an appeal hearing," and that he does not know why his appeal was never put on the city council's agenda again. (Taysom Dep. at 30:12 — 33:3.) Taysom has failed to raise any evidence demonstrating that his failure to receive a second appeal was the result of any affirmative denial on the part of the City of Alpine.
Accordingly, Defendants are entitled to summary judgment on all of Taysom's due process claims, with the exception of his claim that the appeal board which upheld his suspension was biased. Because there remain disputed material facts on the issue of the impartiality of the appeal board, both Defendants' and Taysom's motions for summary judgment on this issue are denied.
3. Qualified immunity on remaining due process claim
With regards to his claim that his due process right to an impartial appeal hearing was violated, Taysom's complaint does not clearly state against whom he asserts liability. It is also unclear whether Defendants have asserted qualified immunity with respect to this claim. The court thus reserves ruling on this issue until further evidence has been presented by the parties.
C. Equal Protection
Taysom contends that the police department's refusal to promote him to the position of corporal violated his right to equal protection. Prior practice in the Alpine Police Department had been to promote on the basis of seniority, and Taysom alleges that he was the senior officer eligible for promotion to the position of corporal. Rather than promote on the customary basis of seniority, however, the police department announced that the corporal position would be filled by testing and then denied Taysom the opportunity to take this test due to his suspension. Taysom argues that the police department's sudden switch in procedures violated his Fourteenth Amendment right to equal protection of the law.
1. Rational basis test
"An equal protection violation occurs when the government treats someone differently than another who is similarly situated." Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996), citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Taysom claims that he was treated differently than Lieutenant David McManus, who, Taysom alleges, had been disciplined by the police department yet subsequently received a promotion on the basis of seniority. Taysom has failed to fully demonstrate, however, that McManus represents a "similarly situated" individual. For example, while Taysom was on suspension at the time he was denied the promotion to the corporal position, Taysom has not shown that McManus was similarly on suspension at the time he was promoted, only that he had been disciplined at some point in the past. On the other hand, the Defendants have not presented evidence to show that Officer McManus was not on suspension at the time he was promoted.
Even if Taysom had successfully demonstrated the existence of a similarly situated person whom the police department had treated differently, Taysom must still show that the police department's differential treatment was unjustified. Taysom's equal protection claim does not allege that he was discriminated against on the basis of any suspect classification such as race, sex, or national origin. The Defendants' actions must therefore bear only a rational relation to a legitimate state purpose. See Penrod, 94 F.3d at 1406; Roche v. Foulger, 404 F. Supp. 705, 708-09 (D.Utah 1975) ("[L]ocal government officials and departments have a wide scope of discretion in dealing with different employees and disciplinary situations, and the equal protection rights of employees are offended only if the treatment received rests on grounds wholly or substantially irrelevant to the achievement of the department's objectives.").
In an attempt to meet the rational basis test, the Defendants' assert that "any discipline imposed on Mr. Taysom was based on Mr. Taysom's violation of the police department's policies and procedures and was thus rationally related to departmental objectives." (Defs.' Memo. in Supp. of Mot. for Summ. J. at 20.) Defendants offer no evidence in support of this argument. This unsupported explanation says nothing, moreover, about why Defendants chose to treat Taysom differently in the manner they in which they did — by instituting a one-time advancement procedure based on testing rather than seniority and then denying Taysom the opportunity to take the advancement test. The Defendants have failed to present evidence which would demonstrate their reasons for including this change in advancement procedures as part of the discipline imposed on Taysom.
On the record now before it, the court cannot grant either party summary judgment on this claim.
2. Qualified immunity on Equal Protection Claim
In order to defeat a claim of qualified immunity, a plaintiff must sufficiently allege the violation of a federal right and that that right was clearly established. See Tonkovich, 159 F.3d at 516. As discussed above, neither party has conclusively established whether Defendants did or did not violate Taysom's right to equal protection. The court is thus unable to determine whether Taysom has met the first prong of the qualified immunity analysis, and it does not proceed to the second prong. See id. The court therefore reserves ruling on the issue of qualified immunity with regards to Taysom's equal protection claim.
Accordingly, both Defendants' motion for summary judgment and Taysom's cross-motion for summary judgment are denied as to Taysom's equal protection claim.
III. Discovery
Taysom raised a number of his legal arguments for the first time in the memoranda filed in connection with these motions. "Issues raised for the first time in a plaintiff's response to a motion for summary judgment may be considered a request to amend the complaint, pursuant to Fed.R.Civ.P. 15. . . [T]he district court should . . . consider whether the evidence presented creates a triable issue of material fact." Viernow v. Euripides Dev. Corp., 157 F.3d 785, 790 n. 9 (10th Cir. 1998) (citations omitted). "[A]s a general rule, a plaintiff should not be prevented from pursuing a valid claim just because she did not set forth in the complaint a theory on which she could recover." Evans v. McDonald's Corp., 936 F.2d 1087, 1090-91 (10th Cir. 1991).
The court has allowed Taysom to present all of his claims, whether set out in his complaint or in his pleadings. Defendants argue, however, that they have been prejudiced by Taysom's introduction of new claims after the completion of discovery. When allowing a plaintiff to introduce claims not set out in the complaint, the court must be wary that "a late shift in the thrust of the case will not prejudice the other party in maintaining his defense upon the merits." Id. Additional discovery will be allowed on all newly-raised claims and theories. If the parties are not able to agree on a discovery schedule and the extent, those questions must be presented to the United States Magistrate Judge.
Order
For the foregoing reasons, the court DENIES summary judgment for both parties on Taysom's Fourth Amendment claim; GRANTS summary judgment in favor of Defendants on all of Taysom's procedural due process claims, with the exception of Taysom's claim that the appeal board was not impartial, for which the court DENIES summary judgment for both parties; and DENIES summary judgment for both parties on Taysom's equal protection claim. Additionally, the court denies without prejudice Defendants' assertion of qualified immunity.