October 21, 2016

Colorado Supreme Court: Charges Requiring Different Evidence Arising from Same Incident Do Not Violate Double Jeopardy

The Colorado Supreme Court issued its opinion in Schneider v. People on Monday, October 17, 2016.

Sentencing—Constitutional Law.

Schneider sought review of the court of appeals’ judgment affirming his convictions and consecutive sentences for two counts of sexual assault. The jury returned guilty verdicts on one count of sexual assault of a physically helpless victim and another count of sexual assault by causing submission of a victim by means of sufficient consequence reasonably calculated to cause submission against the victim’s will, based on evidence of a single, continuous penetration of the same victim. The trial court imposed mandatory consecutive sentences for conviction of separate crimes of violence arising out of the same incident.

The court of appeals upheld the two sexual assault convictions against challenges of jeopardy and merger, on the grounds that defendant was convicted of violating two separate statutes. It also upheld the trial court’s order of consecutive sentences, on the grounds that consecutive sentences were mandated by statute unless both convictions were supported by identical evidence, which it reasoned could not be the case where the evidence required to prove each sexual assault charge was inconsistent with that required to prove the other.

The supreme court affirmed the judgment of the court of appeals, although on slightly different grounds. Although C.R.S. § 18-3-402 proscribes a single crime of “sexual assault,” which can be committed in either of the two ways charged in this case, the evidence at trial was sufficient to support a jury finding that defendant committed that single crime of “sexual assault” twice against the same victim.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Mental Health Assessment Not Court-Ordered Where Defendant Agreed to Participate

The Colorado Supreme Court issued its opinion in Higgins v. People on Monday, October 3, 2016.

Criminal Law—Juvenile Law—Psychotherapist– Patient Privilege—Constitutional Law.

This companion case to People v. Johnson, 2016 CO 69, raises two questions. First, does a trial court have statutory authority to order a juvenile charged as an adult to undergo a state-administered mental health assessment for a reverse-transfer proceeding? The supreme court answered that question in the negative in Johnson, but does not answer that question here because it is hypothetical—the question is not based on the facts of this case. Second, is a trial court required, before a mental health assessment, to provide a juvenile with warnings based on the Fifth Amendment right against self-incrimination? The court does not answer that question either, because (1) Higgins consented to the evaluation while represented by counsel, and (2) any claims that ineffective assistance of counsel vitiated Higgins’s consent are premature. Therefore, the court vacated the order to show cause and remanded the case for further proceedings.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Consent to Search Truck Was Valid so Suppression Unnecessary

The Colorado Supreme Court issued its opinion in People v. Chavez-Barragan on Monday, September 26, 2016.

Fourth Amendment—Traffic Stops—Reasonableness of Investigatory Detention—Voluntariness of Consent to Search.

The Supreme Court reversed the trial court’s order suppressing drugs found in defendant’s truck and defendant’s incriminating statements made to police after they discovered the drugs. Defendant was pulled over for a traffic violation and detained after he consented to a police search of his truck. The Supreme Court concluded that this investigatory detention, which resulted from defendant’s authorization of the search, was reasonable. After considering the totality of the circumstances, the Court also concluded that defendant’s consent to the search was voluntary and the search was lawful. Accordingly, the Court determined that no prior illegality tainted defendant’s incriminating statements. Therefore, neither the drugs nor the statements should have been suppressed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Wife Can Initiate Police Interview After Invocation of Right to Counsel

The Colorado Court of Appeals issued its opinion in People v. Cardman on Thursday, September 22, 2016.

Sexual Assault—Custodial Interrogation—Miranda—Right to Counsel—Third Party.

The police executed a search warrant on defendant’s home after the victim reported that defendant had sexually assaulted her. During the search, they recovered a weapon, and defendant was arrested on the charge of possession of a weapon by a previous offender. Defendant promptly exercised his rights to remain silent and to counsel, and the police ceased questioning. Two days later, a police detective conducted another interview of defendant during which defendant admitted to three instances of sexual contact with the victim. An audio recording of defendant’s second police interview was admitted at trial. Defendant was convicted of multiple counts of sexual assault on a child.

On appeal, defendant contended that the district court erred by not suppressing statements he made during his second custodial interrogation because he had previously invoked his right to counsel and did not himself reinitiate communication with the police. To establish that a suspect has reinitiated discussions with the police after previously invoking his right to counsel, the prosecution must show that (1) the police reasonably believed that the suspect directed a third party to inform them that he wanted to have “a generalized discussion about the investigation,” and (2) the police confirmed with the suspect that he had so indicated. Here, the detective’s testimony was clear that defendant’s wife informed him that defendant had questions about the investigation. Further, the detective knew the caseworker had also been in contact with defendant after the first interview, and she also informed him that both defendant and his wife had questions about the investigation. The detective then called defendant at the jail and confirmed that defendant desired to speak with him. Therefore, defendant “adequately evinced a willingness and a desire to” reinitiate communication with the police through a third party and there was no error in admitting his inculpatory statements.

Defendant also contended that the statements he made in the second interview were not voluntary and that the court erred in not holding a hearing on the issue of voluntariness. The court of appeals did not reach the merits of this issue because defendant moved to suppress the statements solely on reinitiation grounds and thus waived the voluntariness claims.

Defendant also argued that reversal is required because the recording of the interview admitted at trial included the detective’s assertions that he believed the victim and did not believe defendant’s denials of the victim’s allegations, and because the detective testified that he did not believe defendant. The court discerned no plain error in the admission of this evidence.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Jurisdictional Time Limit Not Tolled When Rule 4(a)(4)(A) Requirements Not Met

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Akers on Tuesday, September 20, 2016.

George Rouse hanged himself shortly after being booked into the Grady County Law Enforcement Center in Oklahoma. His mother, Regina Williams, brought suit under 42 U.S.C. § 1983, arguing the defendants knew he was suicidal but failed to inform jail staff of that fact. Defendants asserted qualified immunity and moved to dismiss Williams’ § 1983 claim. The district court denied the motion on October 8, 2014, concluding Williams’ complaint adequately alleged facts showing defendants’ violated Rouse’s clearly established Fourth Amendment rights.

Eight months later, defendants filed a motion to reconsider the district court’s denial of their motion to dismiss. The district court denied the motion on July 31, 2o15. Defendants then filed an appeal of the October 2014 motion with the Tenth Circuit. Noting the jurisdictional defect, the Tenth Circuit requested additional briefing from the parties on August 24, 2015. Defendants argued that because their notice of appeal was filed only four days after the district court denied their motion to reconsider, it was timely filed as to the October 2014 motion to dismiss.

The Tenth Circuit disagreed. The Tenth Circuit noted that Fed. R. App. P. 4(a)(4)(A)(vi) allows a party to enlarge the 30-day time limit for filing an appeal if that party timely files a Rule 60(b) motion, in which case the time limit is tolled until 30 days after the entry of the order disposing of the motion for reconsideration. The Tenth Circuit remarked that it appears that defendants believed they could enlarge the time for filing their notice of appeal from the October 2014 order by filing a motion for reconsideration. However, because the motion for reconsideration was not filed within Rule 4(a)(4)(A)’s mandated 30-day time limit, the notice of appeal was not timely.

The Tenth Circuit also addressed the defendants’ attempt to change the focus of the appeal after the Tenth Circuit requested additional briefing on jurisdiction. Although the Tenth Circuit could look to the notice of appeal, the docketing statement, and the request for the district court to stay proceedings as evidence of defendants’ intent, the Tenth Circuit found only an intent to appeal the October 2014 order, not the July 2015 order. Due to the untimeliness of the appeal from the October 2014 order, the Tenth Circuit lacked jurisdiction to consider the defendants’ arguments.

The Tenth Circuit dismissed the appeal for lack of jurisdiction.

Tenth Circuit: Residual “Crime of Violence” Definition in INA is Unconstitutionally Vague

The Tenth Circuit Court of Appeals issued its opinion in Golicov v. Lynch on Monday, September 19, 2016.

Constantine Fedor Golicov, a lawful permanent resident, was convicted in Utah state court of failing to stop at a police officer’s command, a third-degree felony. He was sentenced to five years’ imprisonment. While serving his sentence, the Department of Homeland Security (DHS) served Golicov with a Notice to Appear, charging that he was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because his Utah conviction constituted an aggravated felony under the Immigration and Nationality Act (INA). Golicov denied the charge and moved to terminate removal. An immigration judge agreed with Golicov, denying the charge and terminating removal proceedings. DHS appealed, and the BIA reversed the immigration judge and remanded to the IJ to “explore Golicov’s potential eligibility for relief.”

On remand, Golicov moved to terminate the proceedings on the grounds that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), effectively rendered unconstitutional and improper for use in immigration proceedings the definition of “crime of violence” contained in 18 U.S.C. § 16(b). The IJ rejected his argument on remand, and the BIA affirmed the IJ. Golicov appealed to the Tenth Circuit.

The Tenth Circuit noted that the Due Process Clause of the Fifth Amendment requires specificity in order to properly apprise ordinary people of the conduct that is prohibited. The government initially argued that because a removal proceeding is civil, the criminal law holding in Johnson should not apply. The Tenth Circuit disagreed, noting that because deportation proceedings can strip non-citizens of their rights, statutes that impose the penalty of deportation are subject to Fifth Amendment vagueness challenges.

The Tenth Circuit reviewed Johnson‘s holding that the residual clause in the Armed Career Criminal Act was void for vagueness, and noted the similarity between the ACCA residual clause and the INA’s residual definition of “crime of violence.” The Tenth Circuit remarked that two circuits have addressed the identical issue and both determined that the INA residual definition was void for vagueness, and two other circuits addressed the issue in a criminal context and also determined the INA’s definition was unconstitutionally vague. The Tenth Circuit agreed with its sister circuits that the INA’s residual “crime of violence” definition is void for vagueness.

The Tenth Circuit vacated the order of removal and remanded to the BIA for further proceedings.

Colorado Supreme Court: Corporate Defendant Not “Essentially At Home” in Colorado, Therefore Jurisdiction Did Not Attach

The Colorado Supreme Court issued its opinion in Magill v. Ford Motor Co. on Monday, September 12, 2016.

Constitutional Law—Personal Jurisdiction—General Jurisdiction—Corporations and Business Organizations—Related or Affiliated Entities.

The Supreme Court issued a rule to show cause to review the trial court’s  conclusion that defendant Ford Motor Company (Ford) is subject to general personal  jurisdiction in Colorado and that venue was proper in Denver County. The Court  concluded that, under Daimler A.G. v. Bauman, 134 S. Ct. 746 (2014), the record does not support a finding that Ford is “essentially at home” in Colorado. Therefore, Ford is not subject to general personal jurisdiction in Colorado. Because the trial court did not  determine whether Ford was subject to specific jurisdiction, the Court did not reach that issue. The Court also held that maintaining a registered agent in the state does not convert a foreign corporation to a resident. Because none of the parties reside in Denver and the accident did not occur there, venue was not appropriate in Denver County.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant’s Confrontation Clause Rights Not Violated by Video Conference Deposition

The Colorado Court of Appeals issued its opinion in People v. Hebert on Thursday, September 8, 2016.

Michelle Ann Hebert convinced an elderly gentleman to give her loans totaling several hundred thousand dollars and did not repay him. The elderly gentleman called the police, and Hebert was charged with theft from an at-risk adult. A public defender was appointed for Hebert, and the prosecution moved that same day to depose the victim. The prosecution requested that the victim be deposed from his own home via video conference due to his failing health. The defense argued that allowing a video conference deposition would violate Hebert’s Confrontation Clause rights, and that his assistance would be ineffective because he did not have time to prepare. The district court granted the prosecution’s motion after a hearing, but ordered that the deposition be held in five weeks in order to give the defense time to prepare. Six weeks later, the victim was deposed via video conference and the deposition was recorded. The victim died before trial, so the recorded deposition was admitted at trial.

After the deposition but before trial, Hebert retained private counsel. Shortly thereafter, the People charged Hebert with additional tax-related offenses, and her private counsel moved to withdraw. Hebert requested appointed counsel, but the public defender’s office determined she was ineligible. She represented herself at trial and was convicted on all counts. She appealed, arguing that the district court erred in failing to make its own findings after the district court found her ineligible for appointed counsel, and by admitting the recorded deposition at trial.

The Colorado Court of Appeals first addressed Hebert’s contention about appointed counsel. In her application, Hebert contended she had meager assets, was responsible for three children, and was separating from her husband. On her joint tax return, she claimed approximately $76,000 in income for that year. The district court considered the tax return and Hebert and her husband’s testimony. Her husband testified that they had never separated, and Hebert admitted she had only claimed they were separating so she could qualify for a public defender. The district court considered the evidence and determined Hebert was not qualified for a public defender. The court of appeals determined the district court’s findings were supported by evidence and therefore there was no abuse of discretion.

The court of appeals next evaluated Hebert’s claims that she was denied a fair trial when the district court admitted the video testimony before her counsel had adequate time to prepare for the deposition. The court of appeals perceived no error. The district court specifically postponed the deposition so that counsel would be able to prepare prior to the deposition.

Hebert also argued her Confrontation Clause rights were violated because she did not have the opportunity to confront her accuser face-to-face. The court of appeals noted that the right to confront an accuser face-to-face is not absolute, and when public policy concerns warrant and the reliability of testimony is otherwise assured, testimony may be obtained other than face-to-face. The court found that the victim in this case was medically unavailable due to his fragile health, crediting two letters and an affidavit from the victim’s doctor that stated that being in the same room with Hebert would cause the victim’s blood pressure to rise to a potentially fatal level. The court of appeals agreed with the district court that the victim’s fragile health necessitated a video conference deposition from the victim’s home. The court found the video reliable, because he gave testimony under oath, was contemporaneously cross-examined by Hebert’s counsel, and the jury was able to assess his demeanor in the video. The court also found no Crawford violation from the video testimony, because the victim was deceased at the time of trial and Hebert was fully able to cross-examine him during the deposition.

The court of appeals affirmed the conviction and sentence.

Colorado Court of Appeals: Officer Justified in Conducting Pat-Down Search Before Allowing Person to Enter his Vehicle

The Colorado Court of Appeals issued its opinion in People v. Gow on Thursday, August 25, 2016.

Tommy Gow was walking in a residential neighborhood at about 2:15 a.m. when a police officer approached him. Gow told the officer he had just purchased an iPad from a friend, and, when the officer verified that Gow had no outstanding warrants, he told Gow he was free to leave. Gow started to leave, but then flagged down the officer and asked for a ride to another house a few blocks away. The officer told Gow he would have to pat him down to check for weapons before Gow could enter his car, and also wanted to look in the iPad box. When Gow opened the box, two small baggies fell to the ground, which Gow told the officer contained “speed.” Gow was arrested and ultimately convicted of possession of methamphetamine and possession of a schedule I controlled substance. He appealed, arguing the officer’s pat-down search violated his Fourth Amendment rights and therefore the evidence should have been suppressed.

On appeal, the Colorado Court of Appeals evaluated Gow’s claim that the pat-down search, including the search of the box, was unconstitutional because under People v. Berdahl, 2012 COA 179, “an officer may not, in the course of providing a courtesy ride, search the individual to be transported without a reasonable, articulable suspicion that the individual is armed and dangerous.” Because the officer in this case did not have a reasonable suspicion that Gow was armed and dangerous, the pat-down search was unconstitutional and the resulting evidence should have been suppressed. The trial court did not cite Berdahl, but its holding that the pat-down was reasonable was directly at odds with Berdahl‘s holding that Colorado does not recognize an “officer safety” exception to the rule that an officer must have a reasonable, articulable suspicion before searching a person.

The court of appeals disagreed with Berdahl, finding that the out of state cases relied on by the division in Berdahl did not stand for the position that an officer may never conduct a pat-down search without reasonable suspicion. The court concluded that the reason for the search was determinative, and in cases where the officer was conducting a pat-down search for his or her own safety prior to transporting individuals in his or her car, it was reasonable for the officer to conduct a pat-down for weapons. The court found it would be illogical to require an officer to compromise his or her safety by allowing individuals in his or her car without patting them down for weapons, and the unintended result would be that officers would be reluctant to offer courtesy rides. The court noted that the Berdahl division was rightly concerned about eroding Fourth Amendment protections, but noted that by only permitting pat-down searches prior to allowing individuals to receive rides, the Fourth Amendment would not be violated.

The court of appeals affirmed the trial court’s denial of Gow’s suppression motion.

Tenth Circuit: State of Residence Cannot Support Reasonable Suspicion

The Tenth Circuit Court of Appeals issued its opinion in Vasquez v. Lewis on Tuesday, August 23, 2016.

Peter Vasquez was driving eastbound on I-70 through Kansas at 2 a.m., traveling from Colorado to Maryland. Officer Lewis and Officer Jimerson could not read Vasquez’s temporary tag through his car’s tinted windows so they initiated a traffic stop. Jimerson observed blankets and a pillow in the front passenger seat and back seat of the car as he approached, and assumed something was obscured by the blankets in the back seat. Vasquez responded that there was no one else in the car. Jimerson took Vasquez’s license and proof of insurance and returned to the patrol car, where he told Lewis that Vasquez appeared nervous. Jimerson sent Lewis to gauge Vasquez’s nervousness and “get a feel for him.” Upon his return, Lewis responded that Vasquez looked “scared to death.” Jimerson checked the insurance and discovered that Vasquez had insurance for two newer vehicles. Suspecting that Vasquez was transporting illegal drugs, Jimerson called for a drug sniffing dog.

Lewis returned to Vasquez’s vehicle and asked where he worked, why he wasn’t driving the newer car, and why he didn’t have more belongings in his vehicle if he was moving. Eventually, Lewis issued a warning and started to walk away, then walked back and asked Vasquez if he could ask a few more questions. Lewis asked Vasquez if there were any illegal drugs in the vehicle, which Vasquez denied. Lewis then asked to search the vehicle but Vasquez refused. After he refused, Lewis detained Vasquez and searched the vehicle, aided by the drug dog. The search revealed nothing illegal.

Vasquez brought suit against the officers under 42 U.S.C. § 1983, arguing they violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. The district court initially denied the officers’ motion to dismiss, but after discovery, it granted the officers’ motion for summary judgment based on qualified immunity, holding that Vasquez could not show the officers violated a clearly established right. Vasquez timely appealed.

The Tenth Circuit remarked that it has repeatedly admonished that once an officer establishes a temporary tag is valid, the officer should explain the reason for the initial stop and let the motorist continue on his or her way. The officers argue their extended seizure was justified by reasons other than the temporary tag. The Tenth Circuit considered only whether the search and dog sniff were valid based on Vasquez’s challenge.

The officers contended their suspicions were valid because Vasquez was driving alone late at night; he was driving from Colorado, a “drug source area”; he was driving on I-70, a “known drug corridor”; he did not have enough items in his car to support his assertion that he was moving; the items in the backseat were obscured from view; he had a blanket and pillow in his car; he was driving an older car despite owning a newer one; there were fresh fingerprints on his trunk; and he seemed nervous. The Tenth Circuit was troubled by the officers’ justification that because Vasquez was from Colorado it should establish reasonable suspicion. The Tenth Circuit strongly cautioned that

It is wholly improper to assume that an individual is more likely to be engaged in criminal conduct because of his state of residence, and thus any fact that would inculpate every resident of a state cannot support reasonable suspicion. Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate.

The Tenth Circuit continued that the continued use of state of residence as justification is impermissible.

The Tenth Circuit also found that nervousness could not be used as justification, and found that the officers’ reasoning was contradictory at points. The Tenth Circuit similarly disregarded the argument that because Vasquez was driving on I-70 there should be suspicion, noting it would be suspicious if he were driving from Colorado to Maryland and not using I-70. The Tenth Circuit concluded the officers violated Vasquez’s constitutional rights by searching his car.

Turning to whether the right to be free of unconstitutional searches was clearly established at the time of the incident, the Tenth Circuit found precedent to support that it was. In fact, the Tenth Circuit found that the same officer, Officer Jimerson, was the subject of a strikingly similar case in which the Tenth Circuit found no reasonable suspicion for the driver’s detention.

The Tenth Circuit reversed the district court’s summary judgment and remanded for further proceedings. Judge McHugh dissented; he would not have found a constitutional violation and would have distinguished the other case involving Officer Jimerson.

Tenth Circuit: No Constitutional Violation Where Court Denied Counsel’s Request for Review of Classified Documents

The Tenth Circuit Court of Appeals issued its opinion in United States v. Lustyik on Monday, August 15, 2016.

Robert Lustyik was an FBI agent who tried to help his friend and business partner, Michael Taylor, with Taylor’s security business, American International Security Corporation (AISC). The Department of Defense offered AISC a contract in 2007 to provide training to Afghan Special Forces, and in 2010 the United States began investigating AISC for fraud and money laundering related to the 2007 DOD contract. The United States filed a civil forfeiture action against AISC’s assets in 2011, resulting in the seizure of more than $5 million from Taylor’s bank account. Lustyik attempted to impede the government’s investigation of Taylor by using his status as an FBI agent, including trying to establish Taylor as a confidential source. Taylor assured Lustyik that he would receive financial compensation for his assistance.

In 2012, a federal grand jury indicted Lustyik, Taylor, and their middle-man on charges of conspiracy, honest services wire fraud, obstruction of justice, and obstruction of agency proceedings. The United States disclosed over one million pages of unclassified discovery, plus 10,000 pages of classified information. Despite revocation of his security clearance, Lustyik was allowed to review nearly 7,000 pages of the classified material. Through his counsel, Lustyik filed a Classified Information Procedures Act (CIPA) motion, identifying which classified information they wished to present at trial. The court denied Lustyik’s motion after an ex parte meeting with defense counsel. During the first few days of Lustyik’s trial, Lustyik pleaded guilty to all eleven counts with no plea agreement. After pleading guilty but before sentencing, Lustyik’s lead counsel withdrew and the court appointed new counsel. Lustyik filed a motion to obtain security clearance for the new attorney, which a magistrate denied.

At sentencing, the court addressed counsel’s inability to access the classified information, noting that it would not add to counsel’s ability to argue for his client. Defense counsel presented significant mitigating evidence and obtained a downward variance from the Guidelines range of 151 to 188 months, and Lustyik was sentenced to 120 years imprisonment. He appealed, arguing his constitutional rights were violated when his counsel was denied access to the confidential materials.

The Tenth Circuit evaluated Lustyik’s claim of a Sixth Amendment violation under de novo review. The Circuit noted that the right to counsel is presumptively violated only where the circumstances are so likely to prejudice the accused that the cost of litigation is unjustified. Lustyik claimed his counsel’s limited ability to review classified materials fatally undercut his effectiveness and prevented him from adequately testing the government’s position. The Tenth Circuit disagreed, finding the presumption of prejudice inapplicable. Because Lustyik failed to show that the district court’s denial created a constitutional violation, the Tenth Circuit reviewed for abuse of discretion and found none. The Tenth Circuit found ample record support for the district court’s conclusions regarding the classified information.

The government conceded on appeal that Lustyik’s sentence may have been illegal, so the Tenth Circuit remanded for sentencing clarification. The Tenth Circuit otherwise affirmed the denial of security clearance.

Tenth Circuit: Findings of Fact Needed to Determine Whether Termination Caused by Employer’s Belief that Employee Engaged in Protected Activity

The Tenth Circuit Court of Appeals issued its opinion in Bird v. West Valley City on Monday, August 8, 2016.

Karen Bird was hired at West Valley City’s animal shelter in 2001, and was promoted to manager by Kelly Davis, her direct supervisor, in 2002. In 2005, West Valley City’s human resources manager, Shirlayne George, investigated the shelter and reported several negative comments about Ms. Bird by fellow employees. Mr. Davis was also the subject of several complaints, especially by women, and Ms. George investigated him in 2009. Most of the women who complained about Mr. Davis were either fired or voluntarily left the animal shelter shortly after complaining. Ms. Bird and Mr. Davis had a disagreement in 2009, and their already strained relationship deteriorated thereafter, to the point where Ms. Bird would not look Mr. Davis in the eye and could not stand to be in the same room as him.

In October 2011, the Salt Lake Tribune published an article about a cat that had endured two failed euthanasia attempts in the shelter’s gas chamber. About a week later, a reporter called the shelter after receiving an anonymous tip about a planned mass-euthanasia due to overpopulation. Both Layne Morris, the Community Preservation Department Director and Mr. Davis’s direct supervisor, and Mr. Davis believed that the anonymous tip had come from Ms. Bird, although she denied it. Ms. Bird was notoriously against using the gas chamber for euthanasia and was one of the few individuals privy to the information about the shelter’s overpopulation. Shortly after this incident, Ms. Bird emailed Ms. George that she could not take any more of Mr. Davis’s harassment. She filed a formal complaint on November 3, 2011.

Less than a week later, Mr. Davis issued two letters of reprimand to Ms. Bird regarding unauthorized use of overtime pay, despite the shelter’s usual practice of issuing less formal warnings before the letters of reprimand. On November 14, in response to Ms. Bird’s complaint, Ms. George undertook an investigation of the entire shelter. She received several complaints regarding both Ms. Bird and Mr. Davis, but more against Ms. Bird. Mr. Morris reviewed the results of the investigation and decided to discipline Ms. Bird for insubordination and failure to be courteous to the public or other shelter employees. He sent Ms. Bird a letter advising of the discipline on November 16, and ultimately terminated her employment on November 29. Mr. Morris testified that his decision to terminate Ms. Bird was not only based on the November 2011 investigation, but rather because of the deterioration of the relationship between Ms. Bird and Mr. Davis. Mr. Morris also testified that he had considered terminating Ms. Bird in December 2010 but Mr. Davis stayed his hand.

Ms. Bird unsuccessfully appealed her termination to Ms. George, then the city’s human resources director, and finally to the West Valley City Appeals Board. When all three appeals were unsuccessful, Ms. Bird filed a complaint in district court, alleging the city terminated her in violation of Title VII as a result of gender discrimination and subjected her to a hostile work environment; the city violated § 1983 because it terminated her as a result of gender discrimination in violation of the Equal Protection Clause; and both the city and Mr. Davis violated § 1983 because they terminated her in retaliation for exercising her First Amendment rights concerning the anonymous tip to the reporter. Ms. Bird maintained that she did not provide the anonymous tip, but because she was perceived as doing so, the termination in retaliation violated her First Amendment rights. Ms. Bird also brought state law claims for breach of contract and breach of the covenant of good faith and fair dealing. The district court granted summary judgment to defendants on all claims.

On appeal, the Tenth Circuit first considered Ms. Bird’s Title VII gender discrimination and hostile work environment claims. Applying the McDonnell Douglas burden-shifting framework, the Tenth Circuit evaluated Ms. Bird’s claim that the shelter had a pattern and practice of discriminating against female employees. However, Mr. Morris provided two legitimate, non-discriminatory reasons for terminating Ms. Bird: insubordination and failure to be courteous and cooperative with fellow employees. The Tenth Circuit evaluated Ms. Bird’s proffered reasons why Mr. Morris’s explanation was pretextual. She first contended that the reasons he outlined for terminating her differed from those offered in his deposition. The Tenth Circuit disagreed; the Circuit noted that Mr. Morris had offered specific examples in his deposition but his stated reasons for Ms. Bird’s termination were always insubordination and failure to be courteous. Ms. Bird also contended that the individuals to whom she appealed her termination offered different reasons, but the Tenth Circuit found that they merely offered different instances of her conduct. The Tenth Circuit held that no reasonable juror could determine that the city’s reason for terminating her was pretextual.

The Tenth Circuit similarly disposed of Ms. Bird’s hostile work environment claims. Although Mr. Davis’s conduct was deplorable, the Circuit did not find any evidence that his behavior was gender-based. Ms. Bird pointed to several statements, but the statements were generalized and did not point to specific instances. The Tenth Circuit refused to consider vague and conclusory statements as evidence of gender discrimination.

Turning next to the § 1983 Equal Protection claims, the Tenth Circuit found that because Ms. Bird alleged the same facts to prove her Equal Protection claim as she asserted to prove her Title VII claims, the Equal Protection argument failed for the same reasons. The Tenth Circuit also disposed of Ms. Bird’s state law breach of contract and breach of fiduciary duty claims. Ms. Bird relied on the employee handbook to argue her claims based on violation of the “Workplace Violence” section and the unwritten anti-retaliation policy. The Tenth Circuit found that the large disclaimer on the handbook eliminated all contractual liability for the city.

Finally, the Tenth Circuit evaluated Ms. Bird’s § 1983 First Amendment retaliation claims. Although Ms. Bird continued to argue that she did not make the anonymous tips to the reporters, she alleged that she was terminated in retaliation because the city believed she had made the tips. The Tenth Circuit found that the Supreme Court’s decision in Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016), controlled its analysis. The lower court did not evaluate Ms. Bird’s First Amendment claims because she could not show that she engaged in protected activity. The Tenth Circuit remanded for a determination of whether Ms. Bird raised a genuine issue of material fact that the city’s belief motivated its decision to terminate her employment.

The Tenth Circuit affirmed the district court’s grant of summary judgment on the Title VII gender discrimination and retaliation claims, the § 1983 Equal Protection Claims, and the state law contractual claims. The Tenth Circuit reversed and remanded on the § 1983 First Amendment claims.