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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action Number:

WAYNE McDONALD, Plaintiff, v.

Jane Doe in her official capacity as a Denver Police Officer and in her individual capacity, AMBER MILLER, in her official capacity as the Mayors Press Secretary, and in her individual capacity, MICHAEL HANCOCK, in his official capacity as Mayor, and in this individual capacity, and CITY AND COUNTY OF DENVER,

Defendants. ______________________________________________________________________________ AMENDED COMPLAINT ______________________________________________________________________________ Wayne McDonald, by his attorney Anne T. Sulton, for his claims against Defendants, alleges:

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1.

McDonald claims the Due Process Clause of the United States Constitution was

violated. He brings his claims under 42 U.S.C. 1983. McDonald also claims Article II of the Colorado Constitution, and Colorado State laws prohibiting defamation, disclosure of confidential personnel information and breach of contract were violated.

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JURISDICTION AND VENUE 2. This Court is vested with jurisdiction over McDonalds claims pursuant to 42

U.S.C. 1983 and 1988, the Fourteenth Amendment to the United States Constitution, and 28

State law claims pursuant to 28 U.S.C. 1367. 3.

Pursuant to the Colorado Governmental Immunity Act, McDonald timely

provided notice of his State law tort claims. remedies. 4.

The unlawful practices alleged herein were committed within the judicial district

of the United States District Court for the District of Colorado. Venue of this action is vested in this Court pursuant to 28 U.S.C. 1391.

5. Colorado. 6.

Plaintiff Wayne McDonald was employed by the City and County of Denver,

Defendant

County of Denver, Colorado. She is being sued in her official capacity as a Denver police officer and in her individual capacity. 7. Defendant Amber Miller is employed as the press secretary for the mayor of

Denver, Colorado. She is being sued in her official capacity as the mayors press secretary and in her individual capacity. 8. Defendant Michael Hancock is employed as the mayor of Denver, Colorado. He

is being sued in his official capacity as Denvers mayor and in his individual capacity.
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Jane Doe is employed as a police officer by the City and

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McDonald has exhausted his administrative

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U.S.C. 1331 and 1343. This Court may exercise supplemental jurisdiction over McDonalds

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9. corporation.

Defendant City and County of Denver (hereinafter City) is a municipal

ADDITIONAL ALLEGATIONS FOR ALL CAUSES OF ACTION 10. 11. for the City. 12. In 2011, McDonald worked on Hancocks campaign for mayor of Denver. Within days of winning the mayoral election, Hancock asked McDonald to work

McDonald was employed full-time as an executive with a large private

corporation. He had held that job for about five years. His base salary was $75,000 a year, and he received benefits of a company car, a gas card, health insurance and other benefits. 13. Hancock orally promised McDonald that the City would hire and pay to

McDonald $85,000 per year if McDonald would agree to resign his private sector corporate executive job, forego other employment opportunities, and work for the City for the entire duration of Hancocks term(s) of office. 14. 15.

McDonald accepted this offer of employment. To memorialize the agreement, on July 11, 2011, Hancock gave to McDonald an

appointment letter that states, in pertinent part: Thank you for agreeing to serve as the Special Assistant to the Mayor. I hereby designate and appoint you to serve at the pleasure of the Special Assistant to the Mayor effective July 18, 2011. Your classification for pay purposes shall be Executive and your annual salary shall be $85,000. thank you for your commitment to my administration 16. 17. On July 15, 2011, McDonald resigned his job with the private corporation. On July 18, 2011, McDonald began working for the City.

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18.

After McDonald was hired by the City, the City gave to McDonald business

cards, identifying McDonald as Executive Advisor to the Mayor, Special Projects Manager and set his annual salary at $85,000. 19. 20. McDonald also was referred to as Special Projects Coordinator.

assigned to him by Hancock or other members of Hancocks staff. 21. security detail. 22.

Shortly after Hancock was sworn into office, he selected Doe to serve on his

McDonald did not direct, supervise, evaluate or otherwise have any influence,

input or control over any aspect of Does employment or job duties, job assignments or work schedule. 23.

When McDonald travelled around the City with Hancock, McDonald would see

and interact with Doe . They engaged in conversations ranging from workplace issues, sporting events, and personal matters. 24.

From time to time, Doe telephoned McDonald, on his personal cell phone, while

he was at his home to discuss personal matters, calling him as early as 6:26 AM and late as 7:39 PM.

his personal cell phone, at least eight times. 26. On November 3, 2011, Doe twice telephoned McDonald, on his personal cell

phone, while he was at his home. The first call was placed at 4:38 PM and lasted for one minute. The second call was placed at 4:39 PM and lasted for 31 minutes. Both telephone calls were tape recorded by Doe without McDonalds knowledge or consent.
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25.

From September 12, 2011 to November 3, 2011, Doe telephoned McDonald, on

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McDonalds job duties were not clearly defined, but he completed all tasks

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27.

From December 15, 2011 to December 24, 2011, Doe telephoned McDonald, on

his personal cell phone, at least five times. 28. During the 2011 Christmas season, Hancock and McDonald exchanged gifts with

several City employees, including Doe . Doe gave a gift to McDonald. A few days later, McDonald gave a gift to Doe 29.

From December 30, 2011 to February 1, 2012, Doe telephoned McDonald, on

his personal cell phone, at least nine times. 30.

In February 2012, perhaps in response to the City Auditors Office report that was

critical of some of its operations, Denvers Department of Excise and Licenses requested the assistance of the Mayors Office in completing several of its tasks. 31.

On March 8, 2012, McDonald was re-assigned to work in the Department of

Excise and Licenses, with the new title of Executive Advisor to the Mayor, Manager of External Affairs. McDonalds office was moved to the Department of Excise and Licens es. He was given a new phone number and new business cards. McDonald also was given a detailed written job description and informed in writing that his job performance would be evaluated based upon the Denver Career Service PEP and PEPR protocols (performance enhancement plan and report). 32.

came to the church McDonald attends. McDonald introduced Doe to his family members. 33. From February 1, 2012 to March 14, 2012, Doe telephoned McDonald, on his

personal cell phone, at least 17 times, as early as 6:26 AM and as late as 5:48 PM. 34. McDonald had no conversations, communications or other contact with Doe

after she telephoned him on March 14, 2012.

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The last day McDonald saw Doe was on or about March 11, 2012, when Doe

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35.

On April 30, 2012, Hancock appointed McDonald to serve on the Denver Taxi

Authority Council. 36. McDonald satisfactorily performed all of his job duties, and had received no

complaints about his job performance or any aspect of his work or conduct as a City employee. 37. On May 18, 2012, McDonald was told to report to Room 389 of the City-County

Building, 1437 Bannock Street, Denver, CO 80202. 38.

When McDonald arrived, Hancocks deputy chief of staff Stephanie OMalley

and City attorney Doug Friednash told McDonald that Doe reported that McDonald sexually harassed DOe and offering as Doe s evidence the tape recordings of McDonalds and Doe s November 3, 2011 telephone calls that Doe recorded without McDonalds knowledge or consent. 39. 40.

McDonald denied that he sexually harassed Doe . Friednash asked McDonald if McDonald would be willing to cooperate in an

investigation that would be conducted by the Mountain States Employers Council (MSEC). 41. McDonald told OMalley and Friednash that McDonald would fully cooperate

with MSECs investigation.

(office keys, badges and other City identification). 43. McDonald gave these items to OMalley, and was walked out of the building

while a police officer monitored his departure. 44. McDonald understood that he was suspended from his job pending the outcome of

the MSEC investigation and a hearing.

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42.

OMalley asked McDonald to give to her all City property in his possession

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45. in Denver. 46.

On May 21, 2012, OMalley asked McDonald to meet her at Racines Restaurant

When McDonald arrived at Racines Restaurant, OMalley and Friednash told

McDonald that he could resign his job or he would be fired because Doe reported McDonald sexually harassed her. 47.

McDonald told OMalley and Friednash that McDonald had done nothing wrong

and asked for an investigation, hearing or other opportunity to defend against Doe s false report that McDonald sexually harassed Doe and to clear his name. 48.

McDonald told OMalley and Friednash that the MSEC or other thorough

investigation would show Doe lied when Doe reported that McDonald sexually harassed Doe . 49. 50. Friednash told McDonald that he was fired. On information and belief, the MSEC did not investigate Doe s report that

McDonald sexually harassed Doe . 51. 52. 53.

McDonald was not given a hearing or other opportunity to clear his name. McDonald did not receive a termination letter from the City. McDonald did not receive anything in writing informing him of the allegations of

misconduct or stating the reasons for his termination. 54. In mid-June 2012, news reporters telephoned McDonald requesting interviews

regarding his termination from his employment with the City, indicating they heard rumors he was fired for sexual harassment. These telephone calls were referred to McDonalds attorney. 55. On June 20, 2012, McDonalds attorney emailed a letter to Miller and Friednash:

a) notifying them that Jeremy Meyer, a Denver Post news reporter, informed her that he made a Colorado Open Records Act (CORA) request for information regarding McDonald; and b)
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informing Miller and Friednash that McDonald opposed release of any personnel or other information protected from disclosure by C.R.S. 24-72-204. 56. On information and belief, on or about June 21, 2012, Miller sent email(s) and/or

other forms of communications to news reporters informing them that McDonald was fired

57.

On and after June 21, 2012, the Denver Post and other local news media outlets

published stories (in newspapers, on radio stations, on television stations, and on the internet) stating that McDonald was fired because of serious allegations of misconduct and that these allegations concern a complaint filed by an unnamed female Denver police officer that McDonald sexually harassed her. Through his attorney, McDonald denied these allegations. 58. On and after June 22, 2012, at press conferences, Hancock confirmed the previous

news media reports that McDonald was fired for serious misconduct. 59. 60. On June 27, 2012, McDonald requested a copy of his personnel file. On July 2, 2012, assistant City attorney Robert Wolf produced a document

purporting to be McDonalds appointment letter and a few other pieces of paper. 61. The appointment letter the City Attorneys Office produced on July 2, 2012, is not

the same appointment letter Hancock gave to McDonald in July 2011. It contains different terms and conditions of McDonalds employment contract. 62. McDonald had never before seen the appointment letter the City Attorneys

Office produced on July 2, 2012. 63. On July 3, 2012, McDonald requested that the City Attorneys Office batestamp

all pages of Mr. McDonalds personnel file and send via email as a pdf.

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because of serious allegations of misconduct.

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64.

On July 17, 2012, McDonald again requested that the City Attorneys Office send

to him a batestamp copy of the personnel file. 65. stamp. 66. Both appointment letters state that a copy of the document is being placed in On July 17, 2012, Wolf responded, stating there is no personnel file to Bates

McDonalds Career Service Authority Personnel file. 67.

After McDonald was fired, Hancock repeatedly telephoned McDonald and his

wife, sometimes leaving messages. McDonald and his wife did not answer or return Hancocks telephone calls. 68.

On July 18, 2012, despite knowing that McDonald is represented by an attorney

and having publicly stated Ill let the legal team handle it, Hancock sent a text message to McDonald, stating: Hey man, Ive been thinking about you and have called you several times 69. 70.

McDonald applied for unemployment compensation benefits. The City opposed McDonalds application for unemployment compensation

benefits, stating he was fired for sexually harassing Doe .

and Employment, Unemployment Insurance Appeals Administration. 74. During this unemployment compensation appeals hearing, OMalley testified that

McDonald was fired because he sexually harassed Doe . The City offered as evidence the tape recordings of the two telephone calls Doe placed to McDonald and that Doe secretly recorded.
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71.

McDonalds application for unemployment compensation benefits was denied.

72.

McDonald appealed the denial of unemployment compensation benefits. On September 24, 2012, a hearing was held by the Colorado Department of Labor

73.

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The hearing officer admitted as evidence the tape recordings and agreed to listen to these recordings before rendering his decision. 75. During this unemployment compensation appeals hearing, McDonald testified

that he did not sexually harass Doe . The hearing officer provided McDonald an opportunity to explain the circumstances of his interactions with Doe . 76.

On October 11, 2012, McDonald was notified in writing that he prevailed in his

unemployment compensation appeal, with the hearing officer writing that McDonald is not at fault for this separation. The claimant and the officer had a close friendly relationship which was not romantic. 77.

McDonald has not been able to locate other employment prospective employers

have told him that his applications for employment were denied because of the news media reports that he was fired for sexual harassment.

FIRST CAUSE OF ACTION (DEFAMATION AGAINST Jane Doe 78. 79. McDonald incorporates here all paragraphs alleged above.

him to be fired from his job, caused him to be held up to public ridicule and contempt, and has deterred others from associating with him. 82. At the time Doe published this statement to third parties, she knew the statement

was false and defamatory.

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McDonald sexually harassed her. 80. 81.

This statement is false. This statement is defamatory because it harmed McDonalds reputation, caused

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Acting under color of law, Doe reported to City officials and employees that

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83.

The unlawful action Doe took against McDonald was taken in malicious, willful,

wanton, reckless indifference to, deliberate indifference to, and/or reckless disregard of McDonalds rights as guaranteed by laws prohibiting defamation. 84. As a direct, foreseeable, and proximate result of Doe s intentional illegal conduct

complained of herein, McDonald suffered injuries and damages, including but not limited to lost income and benefits, damage to his reputation, and emotional distress. These injuries and

damages continue into the present and will continue into the foreseeable future. 85. McDonald requests relief as hereinafter provided.

SECOND CAUSE OF ACTION (VIOLATION OF COLORADO OPEN RECORDS ACT) 86. 87. McDonald incorporates here all paragraphs alleged above.

The Colorado Open Records Act, CRS 24-72-204 et seq., prohibits disclosure of

88.

Information concerning the reason for an employees termination is confidential

personnel information. 89.

informing the news media that McDonald was fired because of serious allegations of misconduct. 91.

allegations of misconduct, she violated the Colorado Open Records Act by disclosing confidential personnel information.

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McDonald was fired because he sexually harassed Doe 90. Acting under color of law, Miller distributed information to news reporters,

When Miller told the news media that McDonald was fired because of serious

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Miller knew that local news media outlets were trying to confirm rumors that

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confidential personnel information.

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92.

Millers unlawful actions against McDonald were taken in malicious, willful,

wanton, reckless indifference to, deliberate indifference to, and/or reckless disregard of McDonalds rights as guaranteed by State laws prohibiting disclosure of confidential personnel information. 93.

conduct complained of herein, McDonald suffered injuries and damages, including but not limited to lost income and benefits, damage to his reputation, and emotional distress. These injuries and damages continue into the present and will continue into the foreseeable future. 94. McDonald requests relief as hereinafter provided.

THIRD CAUSE OF ACTION (BREACH OF CONTRACT) 95. 96.

McDonald incorporates here all paragraphs alleged above.

resign his private sector corporate executive job, forego other employment opportunities, and work for the City then Hancock would appoint McDonald to a City job paying $85,000 a year for

breached when Hancock fired McDonald.

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97.

When McDonald accepted this offer of employment, a contract was formed. On July 15, 2011, McDonald resigned his private sector corporate executive job. On July 18, 2011, McDonald began working for the City. McDonald satisfactorily performed all aspects of his job responsibilities. On May 21, 2012, McDonalds contract of employment with the City was

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the entire duration of Hancocks term(s) of office as Denvers mayor .

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Acting under color of law, Hancock promised McDonald that if McDonald would

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As a direct, foreseeable, and proximate result of Millers intentional illegal

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102.

The duty of good faith and fair dealing, embedded in all Colorado contracts, also

was violated when, at Hancocks direction and/or with his knowledge and consent, City officials and employees, including but not limited to OMalley, Friednash and Miller: a) failed to properly investigate Doe s report that McDonald sexually harassed Doe b) failed to provide McDonald a hearing or other opportunity to clear his name; c) caused news media outlets to publish stories reporting that McDonald was fired for serious misconduct; d) issued a second and different appointment letter after McDonald was fired that contained different terms and conditions of McDonalds contract of employment; and e) destroyed McDonalds personnel file . 103. The unlawful actions Hancock took, or authorized other City officials and

employees to take, under color of law, against McDonald were done in malicious, willful, wanton, reckless indifference to, deliberate indifference to, and/or reckless disregard of McDonalds rights as guaranteed by State laws prohibiting breach of contract and requiring good faith and fair dealing. 104.

As a direct, foreseeable, and proximate result of the intentional illegal conduct

complained of herein, McDonald suffered injuries and damages, including but not limited to lost income and benefits, damage to his reputation, and emotional distress. These injuries and damages continue into the present and will continue into the foreseeable future. 105. McDonald requests relief as hereinafter provided. FOURTH CLAIM FOR RELIEF (VIOLATION OF DUE PROCESS)

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106. 107.

McDonald incorporates here all paragraphs alleged above. McDonald was a public employee.

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108.

McDonalds property and/or liberty interests in his good name , reputation, honor

and integrity are guaranteed by the due process clauses of the Fourteenth Amendment to the United States Constitution and Article II of the Colorado Constitution. 109. These constitutionally protected property and/or liberty interests were infringed

and violated when City officials and employees, including but not limited to Hancock, acting under color of law, created and disseminated a false and defamatory impression about McDonald in connection with the termination of McDonalds employment with the City without providing McDonald a hearing. 110.

Acting under color of law, Miller and Hancock made statements to the news

media indicating that McDonald engaged in serious misconduct. Acting under color of law, OMalley told the Colorado unemployment compensation office that McDonald was fired because he sexually harassed Doe These statements are false. These statements impugn

McDonalds good name, reputation, honor and integrity. 111. Millers, Hancocks and OMalleys statements to the news media and the

unemployment compensation office occurred in the course of terminating McDonalds employment with the City.

McDonald in connection with the termination of his employment, McDonald was entitled to a hearing or other opportunity to clear his name before he was fired. A hearing was required. 113. 114. McDonald was not given a hearing or other opportunity to clear his name. Their statements foreclosed other employment opportunities for McDonald and

initially caused denial of McDonalds unemployment compensation benefits.

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112.

Because they created and disseminated a false and defamatory impression about

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115.

Acting under color of law, City officials and employees, including but not limited

to Hancock, intentionally violated McDonalds constitutional rights under 42 U.S.C. 1983, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and Article II of the Colorado Constitution, by purposefully depriving McDonald of his property and/or liberty interests when they denied McDonald a fair opportunity to be heard and to clear his name. 116. The actions complained of herein were taken in malicious, willful, wanton,

reckless indifference to, deliberate indifference to, and/or reckless disregard of McDonalds rights as guaranteed by 42 U.S.C. 1983, the Fourteenth Amendment to the United States Constitution, and Article II of the Colorado Constitution. 117.

As a direct, foreseeable, and proximate result of the intentional unlawful conduct

complained of herein, McDonald suffered injuries, damages and other losses, including but not limited to lost wages and benefits, damage to his reputation, and emotional distress. These injuries, damages and other losses continue into the present and will continue into the foreseeable future.

WHEREFORE, McDonald respectfully requests this honorable Court enter judgment for him on his Amended Complaint against Defendants and provide the following relief: A. A declaratory judgment that all actions complained of herein are unlawful and

violate 42 U.S.C. 1983 and 1988, the Fourteenth Amendment to the United States Constitution, Article II of the Colorado Constitution, and/or Colorado State laws; B. Prospective injunctive relief, prohibiting Defendants from violating these laws,

including making false and defamatory statements that McDonald sexually harassed Doe or engaged in serious misconduct;
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RELIEF REQUESTED

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C.

An order that Defendants pay, jointly and severally, all damages McDonald

sustained as a result of Defendants illegal conduct, including but not limited to compensatory damages for lost wages and benefits, damages to his reputation, anxiety, emotional distress, humiliation, embarrassment, and mental anguish, plus pre- and post-judgment interest and other statutory penalties; D.

Costs of action incurred herein, including reasonable attorneys fees and expert

fees to the extent available under Federal and State laws; E. the Court; and F.

Retain jurisdiction over this action to assure full compliance with the Orders of

Such other and further legal and equitable relief as this Court deems just and

reasonable under the circumstances.

DEMAND FOR JURY TRIAL Plaintiff hereby requests a jury trial on all causes of action and claims with respect to which he has a right to jury trial.

Respectfully submitted this 2nd day of January, 2013.

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s/Anne T. Sulton Anne T. Sulton Mailing Address: Sulton Law Offices

Attorney for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that on January 2, 2013, I electronically served via email the foregoing upon: Robert Wolf Assistant City Attorney Email: Robert.Wolf@denvergov.org

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s/ Anne T. Sulton Anne T. Sulton Mailing Address: Sulton Law Offices

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