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McDonald v. Wise

United States Court of Appeals, Tenth Circuit

October 28, 2014

WAYNE McDONALD, Plaintiff - Appellant,
LESLIE BRANCH WISE, in her official capacity as a Denver Police Officer and in her individual capacity; AMBER MILLER, in her official capacity as the Mayor's Press Secretary and in her individual capacity; MICHAEL HANCOCK, in his official capacity as Mayor and in his individual capacity; CITY AND COUNTY OF DENVER, Defendant - Appellee

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Appeal from the United States District Court for the District of Colorado. (D.C. No. 1:12-CV-02996-JLK).

Anne T. Sulton of Sulton Law Offices, Milwaukee, Wisconsin, for Plaintiff-Appellant.

Thomas S. Rice (Gillian M. Fahlsing with him on the brief) of Senter Goldfarb & Rice, L.L.C., Denver, Colorado, for Defendants-Appellees Amber Miller, Michael Hancock, and City and County of Denver.

Cathy Havener Greer (William T. O'Connell III with her on the brief) of Wells, Anderson & Race, LLC, Denver, Colorado, for Defendant-Appellee Leslie Branch Wise.

Before LUCERO, SEYMOUR, and TYMKOVICH, Circuit Judges.


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SEYMOUR, Circuit Judge.

Former mayoral appointee, Wayne McDonald, filed this action under 42 U.S.C. § 1983 and Colorado state law after he was terminated from his position with the City of Denver based on the complaint of Officer Leslie Wise that he had sexually harassed her. He sued the Mayor of Denver, the Mayor's press secretary, and the City and County of Denver for due process violations, breach of contract, and unlawful disclosure of confidential information under the Colorado Open Records Act. He sued Ms. Wise for defamation. The district court granted defendants' motions to dismiss all claims under Federal Rule of Civil Procedure 12(b)(6). McDonald v. Wise, No. 12-cv-2996, 2013 WL 1855869 (D. Colo. May 1, 2013) (dismissing claims against Ms. Wise); McDonald v. Miller, 945 F.Supp.2d 1201 (D. Colo. 2013) (dismissing claims against remaining defendants). We affirm in part and reverse in part.



We assume the following facts alleged by Mr. McDonald to be true for purposes of evaluating the dismissals. TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1180 (10th Cir. 2007). In 2011, Denver's newly elected Mayor, Michael Hancock, asked Mr. McDonald to work for the City of Denver. Mayor Hancock orally promised Mr. McDonald employment for the duration of his term or terms of office, and Mr. McDonald accepted the offer. He received an appointment letter on July 11, 2011, thanking him for agreeing to serve as Special Assistant to the Mayor and appointing him to serve " at the pleasure of the Special Assistant to the Mayor." [1] Aplt. App. at 9. He began working for the City on July 18, 2011, as " Executive Advisor to the Mayor, Special Projects Manager." Id. at 9-10.

On March 8, 2012, Mr. McDonald was reassigned to work in the Department of Excise and Licenses as " Executive Advisor to the Mayor, Manager of External Affairs." Id. at 11. He received a job description and was informed in writing that

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his job performance would be evaluated based upon the Denver Career Service Performance Enhancement Plan and Performance Enhancement Plan Report protocols.

Defendant Leslie Wise was employed by the City of Denver as a police officer. Shortly after Mayor Hancock was elected, she began to serve on his security detail. Mr. McDonald interacted with Ms. Wise when he traveled with Mayor Hancock around Denver. Their conversations touched on workplace and personal matters. Between September 2011 and March 2012, Ms. Wise telephoned Mr. McDonald on his personal cell phone at least 41 times, calling him as early as 6:26 a.m. and as late as 7:39 p.m. On November 3, 2011, Ms. Wise recorded two of these calls without Mr. McDonald's knowledge. She placed three-fourths of her total calls to Mr. McDonald after the recorded telephone calls. She also gave Mr. McDonald a Christmas gift, and he subsequently gave her one. Ms. Wise went to Mr. McDonald's church on March 11, 2012, and Mr. McDonald introduced her to his family. The last time they spoke was when Ms. Wise telephoned him on March 14, 2012.

On May 18, 2012, Mr. McDonald was told by the Mayor's deputy chief of staff, Stephanie O'Malley, and city attorney, Doug Friednash, that Ms. Wise reported he had sexually harassed her, providing as evidence the two recorded telephone conversations from November 3. Mr. McDonald denied the allegations and agreed to fully cooperate in an investigation. He gave all of the city property he had to Ms. O'Malley and left on the understanding that he was suspended from his job pending the outcome of an investigation and a hearing.

At a subsequent meeting between the same parties on May 21, Ms. O'Malley and Mr. Friednash told Mr. McDonald that he could either resign or be fired due to Ms. Wise's allegations. Mr. McDonald requested an investigation and an opportunity to defend himself, asserting that an investigation would show Ms. Wise lied when she said Mr. McDonald had sexually harassed her. When he refused to resign, however, Mr. Friednash fired him on the spot. The City did not provide Mr. McDonald a hearing either before or after his termination.

The following month, in light of requests from news reporters indicating there were rumors Mr. McDonald was fired for sexual harassment, Mr. McDonald's attorney sent Mr. Friednash and Ms. Miller a letter notifying them that a news reporter had made a Colorado Open Records Act request for information regarding Mr. McDonald and informing them that Mr. McDonald opposed the release of any personnel or other information protected from disclosure by Colo. Rev. Stat. § 24-72-204. Nevertheless, on June 21, Ms. Miller informed news reporters that Mr. McDonald was terminated because of " serious allegations of misconduct." Aplt. App. at 14. At subsequent press conferences, Mayor Hancock confirmed the news reports that Mr. McDonald " was fired for serious misconduct." Id.

Mr. McDonald applied for unemployment compensation benefits, which the City opposed based on his termination for sexual harassment. After his application was denied, he appealed the decision. At a hearing held by the Colorado Department of Labor and Employment, Unemployment Insurance Appeals Administration, Ms. O'Malley testified that Mr. McDonald was fired for sexual harassment and offered the telephone recordings as evidence. Mr. McDonald testified that he did not sexually harass Ms. Wise

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and was " provided an opportunity to explain the circumstances of his interactions with Wise." Id. at 16. On October 11, 2012, the hearing officer found that Mr. McDonald was " not at fault for th[e] separation," stating that Mr. McDonald and Ms. Wise " had a close friendly relationship which was not romantic." Id. at 16.

Mr. McDonald has not been able to secure other employment. He has been told by potential employers that his applications are being denied because of the reports that he was fired for sexual harassment.



We review de novo a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6). Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012). " [T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as true, 'to state a claim to relief that is plausible on its face.'" Id. (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Disregarding conclusory statements, the remaining factual allegations must " plausibly suggest the defendant is liable." Id. at 1191. A claim for relief is plausible when the plaintiff pleads facts adequate to draw a reasonable inference that the defendant is liable for the alleged misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Such facts must " raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Applying these standards, we first address Mr. McDonald's claims against the City, the Mayor, and the Mayor's Press Secretary, and then turn to his defamation claim against Ms. Wise.



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