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Cillo v. City of Greenwood Village

United States Court of Appeals, Tenth Circuit

December 31, 2013

Patrick CILLO; International Union of Police Associations, AFL-CIO, (

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John A. Culver (Seth J. Benezra and Sarah J. Parady, with him on the briefs), Benezra & Culver, P.C., Lakewood, CO, appearing for Appellants.

Jennifer F. Kemp (Eric M. Ziporin, with her on the brief), Senter Goldfarb & Rice, LLC, appearing for Appellees.

Before MATHESON, McKAY, and EBEL, Circuit Judges.

MATHESON, Circuit Judge.

The City of Greenwood Village, Colorado, (" the City" ) fired Police Sergeant Patrick Cillo after an incident involving officers under his command. Sgt. Cillo alleges the City's real motive for firing him was opposition to the union chapter he led. Sgt. Cillo and his union sued the City and three individual defendants— Police Chief Donnie Perry, Lieutenant Joseph Harvey, and City Manager James Sanderson (collectively " Defendants" ). The district court granted summary judgment for Defendants on all claims. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further proceedings.

I. BACKGROUND

A. Factual History [1]

1. The parties and their roles

The Greenwood Village Police Department (" GVPD" ) comprises about 65 law enforcement officers.[2] At the time of the relevant events, Chief Perry, Lt. Harvey, and three other lieutenants were the top GVPD administrators— the " Command Staff." Mr. Sanderson was the former GVPD police chief and current City Manager. As City Manager, he heard appeals of employee terminations and had final decision— making authority.

Sgt. Cillo, a GVPD officer for 28 years, became a sergeant in 1997. Colleagues considered him a capable leader whose employees " would follow him into a burning

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building." Appx., Vol. II at 411. Sgt. Cillo earned numerous honors from inside and outside the GVPD, including the Medal of Valor, the highest honor given to living officers, and 2008 Officer of the Year for the judicial district encompassing more than twenty law enforcement agencies. His consistently positive performance reviews showed ratings of commendable and outstanding. Sgt. Cillo was never formally disciplined until his 2009 termination.

Until March 2008, Sgt. Cillo held two special leadership assignments, Sergeant in Charge of the Traffic Unit and Commander of the Emergency Response Team (" ERT" ). Through this work, Sgt. Cillo developed considerable expertise in traffic fatality and accident reconstruction. He often consulted with other police departments and testified in court as an expert witness. His supervisors and colleagues universally agreed that he was highly skilled and widely respected in this field, and some described him as " probably the best I know," Appx., Vol. II at 411, and " one of the best in the country," id. at 468.

2. The Union and associated controversy

a. Formation of the Union

Before 2007, nearly every GVPD officer belonged to the local lodge of the Fraternal Order of Police (the " FOP" ), a national " police employee association that had some, but not all characteristics of a union." Appx., Vol. VI at 1489 n. 11. The FOP allows officers, civilian employees, and administrators to join. It does not advocate collective bargaining. Chief Perry and three of his four lieutenants belonged to the FOP. Mr. Sanderson was a former FOP member. The FOP routinely used the GVPD email system and internal mailboxes to announce FOP events, distribute meeting minutes, and collect dues. FOP representatives visited new employee orientation sessions to recruit new members.

In 2007, Sgt. Cillo and two other officers formed Local 305, a chapter of the International Union of Police Associations, referred to within the GVPD as " the Union." See Appx., Vol. II at 257. Sgt. Cillo served as chapter president. Unlike the FOP, the Union advocated collective bargaining and did not allow members of the Command Staff to join. The Union launched an aggressive recruiting effort that sharply criticized the City and the Command Staff for perceived inadequate training, poor officer retention, failures in recruiting, poor morale, low pay, and unfairness and lack of transparency in decision making, particularly regarding promotions.

b. Controversy about the Union

When the Union formed, there was " constant conversation" among GVPD officers about whether they would join. Appx., Vol. IV at 735. Most officers spoke openly about their affiliations with the Union and/or the FOP, and it was " common knowledge" in the small department which officers joined the Union and which remained with the FOP. Id. at 730, 742, 748. When new Union members resigned from the FOP, their names were immediately deleted from the FOP email distribution list, allowing the remaining FOP members to easily deduce who had switched affiliation. No rules prevented officers from belonging to both groups.

" [T]he division between Union and FOP members was palpable." Id. at 742. " [E]ach group associated mainly with other officers who were members of the same group." Id. Some in the department referred to the Union as the " Donnie haters," based on the Union's criticism of Chief Perry and his Command Staff. Appx., Vol. III at 580. After joining the

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Union, some officers felt the Command Staff became " noticeably less friendly" towards them, id. at 730, and they inferred that " the Union [was] a real sore spot for management," id. at 720. Union members suspected that one particular Union member " often told command staff about" what was discussed during closed-door Union meetings. Id. at 748.[3]

The Defendants deny harboring negative views of the Union. Even so, deposition testimony indicates that Mr. Sanderson, Chief Perry, and Lt. Harvey followed the Union's activities with displeasure. The individual defendants discussed the Union on numerous occasions with each another, with other members of the Command Staff, and with rank and file officers. The tone of these conversations ranged from polite disagreement with the Union's positions about collective bargaining to harsh criticism of the Union and of Sgt. Cillo. The Defendants especially disagreed with the Union's goal of implementing collective bargaining.

Mr. Sanderson circulated an open letter disputing the Union's criticisms. During meetings with Command Staff, Mr. Sanderson said that if collective bargaining came into effect, officers would " start from zero" and could lose their existing benefits. Appx., Vol. II at 317. Chief Perry told the Command Staff and individual rank-and-file officers that the Union was divisive and bad for the department. He claimed that Sgt. Cillo had formed the Union as a way to get himself promoted and was taking advantage of Union members. Chief Perry insisted the FOP was a better organization. And he rejected the Union's goal of collective bargaining, saying that if the City ever agreed to bargain collectively, the employee association with the most members would control the bargaining process— which Chief Perry asserted would be the FOP, not the Union. [4]

The new Union grew quickly. Within a year, about half the department had joined, including nearly every officer in Sgt. Cillo's Traffic Unit. Many officers resigned from the FOP after joining the Union, but some remained members of both organizations.

c. Alleged anti-Union actions by the Command Staff

In August 2007, an anonymous letter was circulated widely throughout the GVPD, promoting the Union and criticizing the Command Staff. Lt. Harvey suspected Officer Bry Jones of being the letter's anonymous author. After the letter circulated, Officer Jones applied for a promotion to a sniper position and was considered the leading candidate based on tenure and test scores. During Officer Jones's interview, Lt. Harvey confronted him with suspicions about the letter, saying the author lacked " loyalty" to the department and should not be promoted. Appx., Vol. IV at 743, 749. Lt. Harvey also told Officer

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Jones's direct supervisor that if Officer Jones was the author, the GVPD should not promote him. Officer Jones denied writing the letter and informed the Command Staff that he was concerned the GVPD was withholding a promotion because of his Union affiliation. In the end, the GVPD gave him the position.

Sometime in 2008, the Union sought access to the GVPD email system, officer mailboxes, and new employee orientation meetings. Mr. Sanderson refused, even though he knew the FOP continued using these resources until after Sgt. Cillo's termination. Union members were also prohibited from recruiting officers while on duty, even as FOP recruitment continued during work hours with little or no reprisals.

In March 2008, Chief Perry and Lt. Harvey removed Sgt. Cillo from his position as head of the Traffic Unit and assigned him to lead the Detective Unit. They also stripped him of his long-term position as commander of the ERT, which reduced his income. Chief Perry and Lt. Harvey knew that Sgt. Cillo strongly opposed the move, given his expertise in accident reconstruction and his lack of experience or training in the Detective Unit.[5] The Defendants say this transfer was a leadership rotation, meant to benefit Sgt. Cillo's career by providing cross-training. Sgt. Cillo and others suspected it was meant to set him up for failure— and to isolate him from Union members, as almost every officer in the Detective Unit belonged to the FOP.

By the first half of 2009— just before Sgt. Cillo was fired— Union membership surpassed or was about to surpass FOP membership. The Defendants acknowledge they were aware at the time that the organizations' membership levels " had ... evened out" and the Union " potentially had a few more members" than the FOP. Appx., Vol. IV at 819. But they deny having kept " tabs on ... the exact membership" of either organization. Aplee. Br. at 17.

3. The Motel 6 incident and its disciplinary fallout

a. The incident

About 3:30 a.m. on June 9, 2009, GVPD officers responded to a sexual assault report at the Motel 6 in Greenwood Village. The officers had been told the victim was at the hospital and that two suspected assailants— believed to be members of a local violent gang— were in Room 508.[6] The officers had credible information that one suspect usually carried a handgun, so Officer Jones retrieved a compact AR-15 rifle from his police vehicle.

Sgt. Cillo and another sergeant, David Wroblewski, were the ranking officers on the scene, but there was some confusion as to which sergeant was in charge. Both sergeants and every officer on the scene were Union members except one individual— Field Training Officer (" FTO" ) Matt Williams. An FTO supervises a trainee officer and has the same command responsibilities as a sergeant.

Sgt. Cillo understood that several experienced officers planned a " knock and talk" at Room 508, which meant they would

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attempt to gain voluntary cooperation from the suspects without using force. Appx., Vol. V at 1087-88. FTO Williams and another officer obtained pass keys from the motel management— a common precautionary step in case of exigent circumstances. Four officers, including Officer Jones, approached Room 508. FTO Williams and his trainee officer stood back, and Sgts. Cillo and Wroblewski and a detective stood about 15 to 20 feet behind them.

The officers knocked on the door and announced themselves, but heard no response. Without discussion or instruction, Officer Jones used a pass key to open the door.[7] The door opened a few inches but was stopped by an inside latch. FTO Williams rushed to the door and raised his leg to kick it in. But before he made contact with the door, one of the suspects voluntarily opened it.

Officer Jones entered the room and ordered one of the suspects to the ground. When the suspect did not comply and began backing away, Officer Jones pressed the muzzle of the AR-15 against the suspect's ribs to move him to the bed— a technique taught in GVPD officer ...


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