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Dobbertin v. Town of Patagonia

United States District Court, D. Arizona

April 10, 2014

Edward Dobbertin; et. al;, Plaintiffs,
Town of Patagonia; et. al., Defendant.


CHARLES R. PYLE, Magistrate Judge.

Plaintiffs filed this action in State court alleging violation of 42 U.S.C. §§ 1981, 1983, and state law claims of breach of contract, defamation, wrongful termination, and intentional infliction of emotional distress arising from Plaintiff Edward Dobbertin's termination from employment as the Town Marshal for the Town of Patagonia. (Doc. 1-3). Defendants removed this action based upon federal question jurisdiction. (Doc. 1). The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. See 28 U.S.C. § 636(c).

Pending before the Court is Defendants' Motion for Summary Judgment ("MSJ") (Doc. 22), Plaintiffs' Response (Doc. 27), Defendants' Reply (Doc. 31), and Plaintiffs' Notice of Supplemental Authority (Doc. 34). The matter came on for oral argument on December 19, 2013. For the following reasons, the Court grants Defendants' Motion for Summary Judgment.


Under the Patagonia Town Code, the Town Council appoints the Town Marshal. (Defendants' Statement of Facts ("DSOF") (Doc. 23), Exh. 2). The Town Code provides that: "The marshal may be removed with or without cause, by the council, by simple majority vote of its members, unless the council has entered into a contract of employment with the marshal, in which event the marshal may be removed only in accordance with the terms of such contract and for good cause." ( Id. ("Code §3-2-2")).

On October 12, 2006, Defendant Town of Patagonia ("Town") through Randy Heiss, Town Clerk/Treasurer, sent Plaintiff Edward Dobbertin ("Dobbertin") a conditional offer of employment as Town Marshal. (Plaintiffs' Statement of Facts ("PSOF") (Doc. 28), Exh. 1, p.1). On October 19, 2006, Dobbertin responded that he would accept the offer of employment subject to several conditions including that the Town "Council agrees that they will not exercise the at will' clause, without stated cause." ( Id. at p.3). On this point, Dobbertin went on to state:

I am hopeful that we can come to a mutually satisfying agreement. I believe that the at will' portion of the job classification can create a potentially harmful work environment. If I am not doing what I am supposed to be doing, or fail to achieve the goals and expectations of the Council, then they have cause to terminate my employment. All I am asking is that we all conduct the Town's business like the professions that I believe we are.

( Id. ).

On October 31, 2006, Heiss sent Dobbertin a "Response to Conditional Offer of Employment/Formal Offer of Employment", responding to Dobbertin's proposed conditions of employment. ( Id. at pp. 4-5) In pertinent part, Heiss stated that:

"The Town... agrees that, after successful completion of the standard six-month probationary period, you will not be considered an "at will" employee and may only be terminated for stated cause. The Town also agrees that we will make every attempt to resolve any issues or concerns within the scope of your duties as Town Marshal, through professional, solution oriented dialogue, and in accordance with the Town's personnel policy guidelines.

( Id. at p.5).

The events leading to Dobbertin's termination began when the Patagonia Police Department arrested Alan Woods and filed charges against him in September 2009 for, among other things, aggravated assault with a deadly weapon on Patagonia peace officer Dale Stevenson. According to documents filed by the State in the Woods case, these charges were primarily premised on a verbal report of the incident that Dobbertin gave to the Chief Criminal Deputy of the Santa Cruz County Attorney's Office, which culminated in a criminal complaint sworn to by Dobbertin. (DSOF, Exh. 3 (State's Response to Defendant Woods' Motion to Vacate Judgment, pp.4-5) ("Dobbertin signed a complaint and swore it in affirming... Stevenson's status as a peace officer.... Dobbertin, who was responsible for [Stevenson's] hire and certification... held him out to be a peace officer")). Woods was convicted of the offense. ( Id. at p.3). However, the defense later filed a motion to vacate judgment, which the State did not oppose, based on newly discovered evidence that Stevenson was not a bona fide peace officer at the time of Woods' arrest. ( Id. at pp.1-7). The Santa Cruz County Attorney's investigation of the issue revealed that when Dobbertin appointed Stevenson as a peace officer and issued him a gun and badge, Stevenson was not certified with the Arizona Peace Officers Standards and Training Board ("AZPOST"), as his certification had lapsed in 2002 following his retirement from the Tucson Police Department. ( Id. at p. 6). Further, Stevenson was not on the Town's payroll as a peace officer when Woods was arrested. ( Id. ). In conceding Woods' motion to vacate, the State concluded that "Stevenson and the Patagonia Marshal's Office had misled the prosecutor's office by not disclosing that Stevenson was not AZPOST certified on..." the date of Woods' arrest. ( Id. at p. 7). The Santa Cruz County Superior Court dismissed the aggravated assault charge with prejudice, stating in pertinent part that: "sanctions are appropriate in this case due to the fact that there was disservice to the victims in the case; that the integrity of the judicial system was compromised with misleading and false statements...." (DSOF, Exh. 5, p. 2 (the court also stated that "the case was tainted and... the integrity of this Court was compromised.")).

On September 9, 2010, the day after the court dismissed the Woods case, the Santa Cruz County Attorney informed then-Town Manager Robert Hutchins that based upon the court's findings and dismissal order, the County Attorney's Office would no longer work with Dobbertin or the Patagonia Police Department, and Hutchins so informed Defendant Mayor Richard Isaacson.[1] (DSOF, Notice of Errata (Doc. 24), Exh. 6; PSOF, Exh. 2 (the County Attorney informed Hutchins he was forced to place Dobbertin on a "Brady List")).

At a September 15, 2010 special meeting, the Town Council passed a motion to instruct the Town Manager to draft charges to present to Dobbertin "resulting in a lack of confidence and trust based on what the Council perceives as: recent deterioration in his relations with the County Attorney's office and Superior Court damaging Chief Dobbertin's effectiveness as Chief law enforcement official." (DSOF, Exh. 7). Through September 24 and October, 1, 2010 letters, Hutchins advised Dobbertin as directed. (DSOF, Exhs. 9, 10 (identifying documents and statements influencing the Town's loss of confidence in Dobbertin)). Hutchins further informed Dobbertin that the Council had scheduled a closed Executive Session, unless Dobbertin requested otherwise, to consider disciplinary action and to allow him "to present further information on the Alan Woods matter and explain to the Council why they should continue to have trust in you and your ability to manage the Town's police force." (DSOF, Exh. 9; see also DSOF Exh. 10). Dobbertin was permitted to have a representative present at the Executive Session. (DSOF, Exh. 10).

On October 6, 2010, the Council held an Executive Session where Dobbertin was given the opportunity to provide his side of the story concerning the events in the Woods case. (DSOF Notice of Errata, (Doc. 24), ¶21 & Exh 6; PSOF, Exh. 2, ¶2). After voting, the Council directed Town Manager Hutchins to dismiss Dobbertin from employment. (DSOF, Exh. 11). Hutchins was terminated on October 8, 2010 when he refused to follow the Council's directive, and on October 13, 2010, Defendant Interim Town Manager Isabel Van Nest sent Dobbertin a letter informing him of his immediate termination and offering him a post-termination hearing if he wanted one. (DSOF, Exh. 12; PSOF, Exh. 2, ¶¶12-14). Upon Dobbertin's request, a post-termination hearing before Hearing Officer William E. Druke, a retired Arizona Appellate Court Judge, occurred on March 9, 2011, and resulted in the finding that the Town had good cause to terminate Dobbertin. (DSOF, Exhs. 13, 15; DSOF, Exh. 4, pp. 76-77; PSOF, ¶8). At the hearing, Dobbertin was represented by counsel, presented testimony, and submitted evidence on his behalf. (DSOF, Exh. 4 at p. 76; DSOF Exh. 15).


Summary judgment is appropriate when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c)(2). The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record]... which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The nonmoving party's evidence is presumed true and all inferences are to be drawn in the light most favorable to that party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir. 1987).

Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment, and the disputed evidence must be "such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the burden of persuasion at trial would be on the nonmoving party, the movant may carry its initial burden of production under Rule 56(c) by producing, "evidence negating an essential element of the nonmoving party's case, " or by showing, after suitable discovery, that the "nonmoving party does not have enough evidence of an essential element of ...

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