United States District Court, D. Arizona
David G. Campbell United States District Judge
Defendants filed separate motions for summary judgment against Plaintiffs Kendall Drake and Greg Hunter. Docs. 88, 90. The motions are fully briefed, and no party has requested oral argument. The Court will grant the motions in part and deny them in part.
Plaintiffs Kendall Drake and Greg Hunter were police officers with the City of Eloy Police Department. Both ultimately resigned from their positions. Plaintiffs sued Defendants City of Eloy, Michelle Tarango, David Crane, William Pitman, and Brian Jerome, alleging a number of claims arising from their tenure with the Department. William Pitman was the chief of police; Michelle Tarango was the lieutenant in charge of patrol and had supervisory duties over Crane, Drake, and Hunter; David Crane was the sergeant with immediate supervisory authority over Drake and Hunter; Brian Jerome was a sergeant whose duties included internal investigations of misconduct.
Drake was hired on August 22, 2011, as a communications and detention specialist. Doc. 89-2 at 3. On October 2, 2011, Drake entered the police academy. Id. She became a probationary patrol officer on January 28, 2012. Id. Hunter was hired by the City of Eloy on May 22, 2012, as a probationary patrol officer. Id. Tarango eventually assigned Drake and Hunter to work together under Crane (Doc. 104-1 at 12), who was promoted to sergeant in September 2012 (Doc. 89-5 at 56).
On April 20, 2013, Drake and Hunter were dispatched to the scene of a dying cat. Drake, who had previously worked as an animal control officer, knew “after a few seconds of looking at” the cat that it needed to be euthanized. Doc. 104-1 at 53-55. Drake requested assistance from an animal control officer. Id. at 54. When she learned that animal control was unavailable, Drake sought approval from Crane over the radio to euthanize the injured cat. Id. at 58. Crane subsequently arrived at the scene. Doc. 89-3 at 59. Drake, Hunter, and Crane discussed the situation. Doc. 89-3 at 59. At some point, Drake told Crane that “intentionally and knowingly allowing an animal to suffer is a felony.” Id. at 60. Crane eventually put the injured cat in his truck and left. Id. He did not inform Drake and Hunter of where or how he intended to euthanize the cat. Id. Crane “drove directly to the landfill and euthanized the cat with [his] service weapon.” Doc. 89-5 at 56.
Drake was upset that Crane had left the scene without informing her of what he intended to do with the cat. Doc. 89-3 at 60. Drake went to dispatch to find out what Crane had done with the animal. Id. In dispatch, Drake spoke with Dana Jackson. Id. Drake mentioned animal cruelty during the conversation, but she did not directly accuse Crane of committing a crime. Id. at 60-61. While Drake and Jackson were conversing, Jerome arrived. Doc. 89-9 at 6. According to Jerome, Drake appeared upset. Id. Drake relayed her account of the cat incident to Jerome. Id.
Crane subsequently requested that Drake and Hunter each prepare memoranda detailing the events of April 20, 2013. Doc. 89-8 at 16, 28-29. Both officers submitted their memoranda to Crane on May 6, 2013. Docs. 104-5 at 12; 104-7 at 42. Drake wrote that she was providing the memorandum in accordance with Crane’s request for a “memo describing what [Crane] referred to as the ‘incident in dispatch.’” Doc. 104-5 at 12. Drake described the cat incident in detail, referring to the wounded animal’s suffering numerous times. See Id. at 12-16. Drake stated that she “advised [Crane] that knowingly allowing an animal to suffer and failing to take actions to ease or cease the suffering may be considered a felony offense per chapter 2910 of title 13 and we needed to GO.” Id. at 14. Drake also recounted subsequent conversations with Jerome in which Jerome expressed concerns about her fitness for duty. Id. at 14-15. Hunter’s memorandum, although less detailed, was consistent with Drake’s. See Doc. 104-7 at 42-43.
The memoranda - particularly Drake’s - created tension between Crane and Drake. After reviewing Drake’s memorandum, Crane told her it was “off scope.” Doc. 104-5 at 20. Crane had anticipated that Drake’s memorandum would be limited to what occurred in dispatch. Id. Crane also asked Drake to “keep everything in-house” and not “put dirty laundry out there for other shifts or other Sergeants or Dispatch or whomever.” Id. at 26, 34. In a memorandum to Lieutenant Tarango, Crane subsequently questioned whether Drake was able to perform her job duties effectively. Doc. 104-4 at 61. As a result of these issues, Drake asked to be removed from Crane’s supervision. Doc. 89-5 at 63. Tarango granted this request, but without providing advance notice to Drake. Doc. 89-4 at 4. The schedule change forced Drake to use leave time to move, and also required her to miss training programs she otherwise would have attended. Doc. 104-1 at 38-39.
Tarango directed Crane to prepare a performance evaluation of Drake, which he produced on May 12, 2013. Doc. 89-4 at 3. This evaluation never appeared in Drake’s personnel file. Doc. 89-2 at 3. Drake subsequently complained to Tarango about the evaluation. Doc. 89-4 at 3. Tarango revised the evaluation, adding statistical information to support her subjective ratings. Id. Drake received an overall “satisfactory” rating on her May 20, 2013 performance evaluation, which qualified her for a retroactive merit pay increase. Id.
On May 22, 2013, Drake submitted an “offensive behavior/harassment complaint” to the City of Eloy human resources department. Doc. 104-5 at 65-70. The complaint stated that Drake felt “extremely uncomfortable at work all the time now” and felt like she was “being singled out.” Id. at 70. She requested that the City of Eloy refer the matter for investigation by an independent law enforcement agency. Id. As a result, the Pinal County Sheriff’s Office conducted an investigation. See Doc. 104-6 at 2-12, 14-22. Drake also filed complaints with the Arizona Attorney General’s Office and the Arizona Personnel Board. Id. at 24, 26-32.
In June 2013, Drake accused a fellow officer, Jeffrey Young, of sexual harassment. In a series of text messages, Young expressed romantic feelings for Drake and asked her to send him nude photographs of herself. Doc. 89-4 at 86-88. Young was immediately placed on paid administrative leave pending investigation. Id. at 44. After the investigation, Young was suspended without pay for 40 hours and removed from the list of promotion-eligible officers. Id. at 45. The Eloy City Manager directed Chief Pitman to minimize the contact between Young and Drake. Id. Pitman, in turn, directed Lieutenant Tarango to minimize the amount of overlap between their schedules. Id.
Some contact between Drake and Young was inevitable. On several occasions, Young purposely worked in close proximity to Drake in the squad room, despite the City Manager’s and Pitman’s directives. Doc. 104-1 at 48. Neither Drake’s nor Young’s superior officers intervened. Id. Drake identified one interaction with Young as particularly egregious. Drake was working on the computers in the squad room when Young entered. Doc. 89-3 at 42-43. Young sat close to Drake and “leered” at her breasts with a “creepy smirk on his face.” Id. at 43. Drake resigned shortly thereafter, on September 24, 2013. Doc. 89-2 at 3.
After her resignation, and within earshot of Hunter, Chief Pitman said that Drake’s departure was “[o]ne bad hire down, one to go.” Id. at 62. On July 14, 2013, Hunter received a performance evaluation from Crane that “came as a complete surprise.” Doc. 94 at 18. Hunter’s overall performance was rated as “needs improvement.” Doc. 104-7 at 50. Five days later, Hunter filed an “offensive behavior/harassment” complaint with the City human resources department. See Doc. 94 at 16-23. The complaint disputed the factual content of Hunter’s evaluation in great detail. See Id. Hunter ultimately accused Crane of fraud, and sought a referral for an independent investigation. Id. at 17.
Hunter was involved in two other incidents. First, the Department investigated whether Hunter had abused his use of leave time on June 17, 2013 by feigning illness shortly after his request for leave was denied. Docs. 89-4 at 45-46; 89-5 at 5-7. Second, Crane informed Tarango and Pitman that Hunter was unable to wear a ballistic vest because of a medical condition. Doc. 89-4 at 6. After Hunter met with a dermatology specialist, Pitman directed Tarango to research alternative ballistic vests or vest cooling devices that would allow the Department to satisfy its mandatory-vest policy. Id. While this research was on-going, Pitman assigned Hunter to work in dispatch. Id. at 46. After receiving reports that Hunter was disruptive in dispatch, Pitman assigned him to work in the squad room on administrative tasks. Id. at 46-47. After reports that Hunter was again being disruptive, Pitman moved him to the interview room. Id. at 47. Hunter resigned on October 30, 2013, while the search for a suitable ballistic vest was still on-going. Doc. 89-2 at 3.
II. Summary Judgment Standard.
A 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). Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, shows “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Summary judgment is also appropriate against a party who “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. 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).
Defendants seek summary judgment on Plaintiffs’ claims for: (1) defamation; (2) false light invasion of privacy; (3) violation of their free speech rights under the Arizona Constitution; (4) retaliation for speech protected by the First Amendment; (5) deprivation of their protected liberty interests under the Fourteenth Amendment; (6) violation of Arizona’s whistleblower statutes; and (7) constructive discharge. Defendants also filed a Rule 56(c)(2) objection to Plaintiffs’ reliance on an investigation report.
Plaintiffs make no effort to respond to the motions on their claims for defamation, false light invasion of privacy, denial of free speech under the Arizona Constitution, and denial of due process under the Fourteenth Amendment. They do not even mention these claims in their responses. This is not appropriate. If Plaintiffs cannot support some of their claims, they should say so. More importantly, Plaintiffs should voluntarily dismiss the claims before summary judgment and save Defendants and the Court the effort of briefing and reviewing them. The Court will grant summary judgment on the claims for defamation, false light invasion of privacy, denial of free speech under the Arizona Constitution, and denial of due process under the Fourteenth Amendment.
A. Evidentiary Objections.
In ruling on a motion for summary judgment, the Court may consider only evidence that would be admissible at trial. See Fed. R. Civ. P. 56(c)(2); Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). Defendants challenge the admissibility of evidence proffered by Plaintiffs in opposition to Defendants’ motions for summary judgment. Doc. 111. Defendants specifically challenge Plaintiffs’ Exhibit 4, which is an investigation report prepared by Victoria Torrilhon, a lawyer retained by Defendants to investigate the incidents leading up to the resignations of Drake and Hunter.
Plaintiffs’ Exhibit 4 is hearsay. It is a writing offered to prove the truth of the matters asserted. Fed.R.Evid. 801(c). Hearsay evidence is generally inadmissible “unless it is defined as non-hearsay under Federal Rule of Evidence 801(d) or falls within a hearsay exception under Rules 803, 804 or 807.” Orr, 285 F.3d at 778. Plaintiffs have not argued that this report or the statements it contains are excepted or excluded as non-hearsay under any of the Federal ...