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Wolf v. Vista

United States District Court, D. Arizona

June 25, 2014

Jerold Wolf, Plaintiff,
Sierra Vista, et al., Defendants.


JENNIFER G. ZIPPS, District Judge.

Pending before the Court is a Motion for Summary Judgment filed by Defendants City of Sierra Vista, Sierra Vista City Manager Charles P. Potucek and Sierra Vista Chief of Police Ken Kimmel ("Defendants") on January 31, 2014.[1] (Doc. 19.) Plaintiff Jerold Wolf ("Wolf") filed a response to the Motion on March 17, 2013. (Doc. 23.) Defendants filed a reply on April 4, 2014. (Doc. 25.) Defendants seek summary judgment on Plaintiff's claims of libel, slander, false light, defamation, arbitrary demotion in violation of Arizona law, unreasonable discipline in violation of A.R.S. § 38-1104 and violation of due process under Arizona and federal law. For the reasons stated herein, the Court will grant the Motion in part and remand this case to the Cochise County Superior Court.[2]


Plaintiff worked as an officer with the City of Sierra Vista Police Department ("SVPD") for 15 years. (DSOF 1; PSOF 1.)[3] On July 5, 2010, Plaintiff was promoted to Corporal on a six-month probationary basis. (DSOF 2-3; PSOF 2-3.)

In October 2010, Plaintiff received an unfavorable performance evaluation.[4] (Doc. 20-2, pgs. 2-16.) On October 28, 2010, Chief Kimmel wrote a "Memorandum of Record" to Plaintiff stating that the evaluation was unacceptable and that if Plaintiff did not immediately improve, Chief Kimmel would recommend that his probationary period be extended. (Doc. 20-2, pg. 2.)

On January 2, 2011, Plaintiff received another evaluation of his performance following the October 2010 assessment. (DSOF 8; PSOF 8; Doc. 20-2, pgs. 18-32.) The evaluation stated that Plaintiff was not performing to expectation. ( Id. ) Plaintiff refused to sign the evaluation and wrote in the "employee comments" section of the evaluation that the evaluation did not reflect his performance. (Doc. 20-1, pg. 9; Doc. 20-2, pg. 18.) On January 10, 2011, Plaintiff's probationary status was extended for an additional six months. (DSOF 15; PSOF 15.)

On September 26, 2011, Donna Hilton of the City of Sierra Vista Human Resources Department sent a letter to Plaintiff informing him that Chief Kimmel had recommended that Plaintiff be demoted from Corporal to his former position as a police officer. (Doc. 20-2, pg. 39.) The letter advised Plaintiff that he would have an opportunity to address the grounds for the demotion at an internal administrative hearing on October 6, 2011. ( Id. ) On that date, Plaintiff attended a hearing with City Manager Potucek. (Doc. 20-1, pg. 17.) Ms. Hilton and a representative of the police officer's association also attended the meeting. ( Id. ) Plaintiff explained why he disagreed with the recommendation that he be demoted. ( Id. ) Following the October 6, 2011 hearing, the City adopted the Chief's recommendation and demoted Plaintiff effective October 13, 2011. (DSOF 19; PSOF 19.)

Plaintiff appealed the City's decision and, pursuant to the City's policies, was afforded the opportunity to present his appeal to a hearing officer in the form of an evidentiary hearing. At the November 8, 2011 hearing, Plaintiff was represented by counsel, testified and cross-examined witnesses. (DSOF 20-21; PSOF 20-21.) On November 28, 2011, the hearing officer recommended that the City Manager rescind the discipline and reinstate Plaintiff as a Corporal in the SVPD. (DSOF 22; PSOF 22.)

The parties dispute what happened next. According to Defendants, their attorney sent an email to Plaintiff's attorney on December 5, 2011, stating that City Manager Potucek was not inclined to adopt the hearing officer's recommendation and that it was within City Manager Potucek's authority to demote Plaintiff back to the job of regular line officer. (DSOF 23-24.) Defendants' counsel indicated that, as a compromise, City Manager Potucek was willing to allow Plaintiff to choose an assignment as either the School Resource Officer or as an officer in the property crimes unit following his demotion. (DSOF 26; Doc. 20-3, pg. 16.) On that same date, Plaintiff's counsel emailed Defendants' counsel and stated that Plaintiff had agreed to accept the position in the property crimes unit. (DSOF 26; Doc. 20-3, pg. 18.) On December 7, 2011, City Manager Potucek issued a Memorandum to Plaintiff stating: "On October 14, 2011, you submitted an appeal to your demotion from the position of Police Corporal to Police Officer. During the process an agreement was reached that you would be assigned to the Property Crimes Unit effective December 7, 2011." (DSOF 29; Doc. 20-3, pg. 20.)

Plaintiff objects to the admissibility of the emails between his counsel and Defendants' counsel on the grounds that the emails have not been authenticated, contain hearsay and lack foundation. (Doc. 24, pgs. 15-19.) Plaintiff acknowledges that he received the December 7, 2011 Memorandum from City Manager Potucek, but denies that he reached an agreement with Defendants to forego his appeal of his demotion in exchange for assignment in the property crimes unit. (Doc. 24, pg. 20.) According to Plaintiff, the property crimes position was offered to him as an "olive branch, " but was not intended to end his appeal. (Doc. 20-1, pg. 23.)

It is undisputed that Officer Mary Chatham had been slated to fill the open property crimes position. (DSOF 30; PSOF 30.) Officer Chatham stated in an affidavit that Plaintiff told her he had accepted the property crimes position as part of a compromise with the City to resolve his appeal of his demotion from Corporal. (Doc. 20-3, pg. 22.)

On June 2, 2012, Plaintiff filed a Notice of Claim pursuant to A.R.S. § 12-821.01. (DSOF 38; PSOF 38.) Plaintiff filed the instant action on November 6, 2012 in Cochise County Superior Court. (Doc. 1.) Plaintiff's Complaint alleges eight counts against Defendants: (1) libel and slander per quod in violation of Arizona law; (2) libel and slander per se in violation of Arizona law; (3) libel and slander (false light) in violation of Arizona law; (4) defamation in violation of Arizona law; (5) arbitrary demotion in violation of Arizona law; (6) unreasonable discipline of a law enforcement officer in violation of A.R.S. § 38-1104[5]; (7) violation of Arizona's Due Process clause, Ariz. Const. Art. II.4; and (8) violation of the due process rights guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.

Defendants removed the action to this Court on February 25, 2013. ( Id. ) Review of the docket indicates that while Defendants served Plaintiff with disclosure and discovery requests and deposed Plaintiff, Plaintiff did not provide Defendants with any disclosure and did not engage in any discovery in this ...

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