Wayne McDonald Complaint

Filed 01/02/13 USDC Colorado Page 1 of 17
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Civil Action Number:
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WAYNE McDONALD,
Plaintiff,
v.
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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,
and
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CITY AND COUNTY OF DENVER,
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MICHAEL HANCOCK, in his official capacity as Mayor,

and in this individual capacity,
Defendants.
______________________________________________________________________________
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AMENDED COMPLAINT
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Wayne McDonald, by his attorney Anne T. Sulton, for his claims against Defendants,
alleges:
1.
NATURE
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.
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
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U.S.C. 1331 and 1343. This Court may exercise supplemental jurisdiction over McDonalds
State law claims pursuant to 28 U.S.C. 1367.
Pursuant to the Colorado Governmental Immunity Act, McDonald timely
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3.
provided notice of his State law tort claims.

remedies.
The unlawful practices alleged herein were committed within the judicial district
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4.
McDonald has exhausted his administrative
of the United States District Court for the District of Colorado. Venue of this action is vested in
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this Court pursuant to 28 U.S.C. 1391.
PARTIES
5.
Plaintiff Wayne McDonald was employed by the City and County of Denver,
Defendant
Jane Doe is employed as a police officer by the City and
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Colorado.
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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9.
Defendant City and County of Denver (hereinafter City) is a municipal
corporation.
ADDITIONAL ALLEGATIONS FOR ALL CAUSES OF ACTION
In 2011, McDonald worked on Hancocks campaign for mayor of Denver.
11.
Within days of winning the mayoral election, Hancock asked McDonald to work
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10.
for the City.
McDonald was employed full-time as an executive with a large private
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12.
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.
Hancock orally promised McDonald that the City would hire and pay to
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13.
McDonald $85,000 per year if McDonald would agree to resign his private sector corporate
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executive job, forego other employment opportunities, and work for the City for the entire
duration of Hancocks term(s) of office.
McDonald accepted this offer of employment.
15.
To memorialize the agreement, on July 11, 2011, Hancock gave to McDonald an
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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.
On July 15, 2011, McDonald resigned his job with the private corporation.
17.
On July 18, 2011, McDonald began working for the City.
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.
McDonald also was referred to as Special Projects Coordinator.
20.
McDonalds job duties were not clearly defined, but he completed all tasks
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19.
assigned to him by Hancock or other members of Hancocks staff.
Shortly after Hancock was sworn into office, he selected Doe to serve on his
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21.
security detail.
22.
McDonald did not direct, supervise, evaluate or otherwise have any influence,
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input or control over any aspect of Does employment or job duties, job assignments or work
schedule.
When McDonald travelled around the City with Hancock, McDonald would see
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and interact with Doe . They engaged in conversations ranging from workplace issues, sporting
events, and personal matters.
From time to time, Doe telephoned McDonald, on his personal cell phone, while
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he was at his home to discuss personal matters, calling him as early as 6:26 AM and late as 7:39
PM.
25.
From September 12, 2011 to November 3, 2011, Doe telephoned McDonald, on
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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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
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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
30.
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his personal cell phone, at least nine times.
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
31.
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assistance of the Mayors Office in completing several of its tasks.
On March 8, 2012, McDonald was re-assigned to work in the Department of
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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 Licenses. He
was given a new phone number and new business cards. McDonald also was given a detailed
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written job description and informed in writing that his job performance would be evaluated
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based upon the Denver Career Service PEP and PEPR protocols (performance enhancement plan
and report).
32.
The last day McDonald saw Doe was on or about March 11, 2012, when Doe
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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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
37.
On May 18, 2012, McDonald was told to report to Room 389 of the City-County
Building, 1437 Bannock Street, Denver, CO 80202.
When McDonald arrived, Hancocks deputy chief of staff Stephanie OMalley
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complaints about his job performance or any aspect of his work or conduct as a City employee.
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
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November 3, 2011 telephone calls that Doe recorded without McDonalds knowledge or
consent.
McDonald denied that he sexually harassed Doe .
40.
Friednash asked McDonald if McDonald would be willing to cooperate in an
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39.
investigation that would be conducted by the Mountain States Employers Council (MSEC).
McDonald told OMalley and Friednash that McDonald would fully cooperate
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41.
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with MSECs investigation.

42.
OMalley asked McDonald to give to her all City property in his possession
(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.
45.
On May 21, 2012, OMalley asked McDonald to meet her at Racines Restaurant
in Denver.
46.
When McDonald arrived at Racines Restaurant, OMalley and Friednash told
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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
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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
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investigation would show Doe lied when Doe reported that McDonald sexually harassed Doe .
Friednash told McDonald that he was fired.
50.
On information and belief, the MSEC did not investigate Doe s report that
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49.
McDonald sexually harassed Doe .
McDonald was not given a hearing or other opportunity to clear his name.
52.
McDonald did not receive a termination letter from the City.
53.
McDonald did not receive anything in writing informing him of the allegations of
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51.
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.
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because of serious allegations of misconduct.
On and after June 21, 2012, the Denver Post and other local news media outlets
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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
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McDonald sexually harassed her. Through his attorney, McDonald denied these allegations.
On and after June 22, 2012, at press conferences, Hancock confirmed the previous
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news media reports that McDonald was fired for serious misconduct.
59.
On June 27, 2012, McDonald requested a copy of his personnel file.
60.
On July 2, 2012, assistant City attorney Robert Wolf produced a document
The appointment letter the City Attorneys Office produced on July 2, 2012, is not
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61.
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purporting to be McDonalds appointment letter and a few other pieces of paper.
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.
64.
On July 17, 2012, McDonald again requested that the City Attorneys Office send
to him a batestamp copy of the personnel file.

65.
On July 17, 2012, Wolf responded, stating there is no personnel file to Bates
66.
Both appointment letters state that a copy of the document is being placed in
McDonalds Career Service Authority Personnel file.
After McDonald was fired, Hancock repeatedly telephoned McDonald and his
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67.
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wife, sometimes leaving messages. McDonald and his wife did not answer or return Hancocks
telephone calls.
On July 18, 2012, despite knowing that McDonald is represented by an attorney
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and having publicly stated Ill let the legal team handle it, Hancock sent a text message to
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McDonald, stating: Hey man, Ive been thinking about you and have called you several times
McDonald applied for unemployment compensation benefits.
70.
The City opposed McDonalds application for unemployment compensation
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benefits, stating he was fired for sexually harassing Doe .

71.
McDonalds application for unemployment compensation benefits was denied.
72.
McDonald appealed the denial of unemployment compensation benefits.
73.
On September 24, 2012, a hearing was held by the Colorado Department of Labor
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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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
explain the circumstances of his interactions with Doe .

76.
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that he did not sexually harass Doe . The hearing officer provided McDonald an opportunity to
On October 11, 2012, McDonald was notified in writing that he prevailed in his
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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.
McDonald has not been able to locate other employment prospective employers
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77.
have told him that his applications for employment were denied because of the news media
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reports that he was fired for sexual harassment.
FIRST CAUSE OF ACTION

(DEFAMATION AGAINST Jane Doe
McDonald incorporates here all paragraphs alleged above.
79.
Acting under color of law, Doe reported to City officials and employees that
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McDonald sexually harassed her.

80.
This statement is false.
81.
This statement is defamatory because it harmed McDonalds reputation, caused
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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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.
As a direct, foreseeable, and proximate result of Doe s intentional illegal conduct
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84.
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
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damages continue into the present and will continue into the foreseeable future.
McDonald requests relief as hereinafter provided.
SECOND CAUSE OF ACTION

(VIOLATION OF COLORADO OPEN RECORDS ACT)
87.
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.
Miller knew that local news media outlets were trying to confirm rumors that
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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,
informing the news media that McDonald was fired because of serious allegations of
misconduct.
91.
When Miller told the news media that McDonald was fired because of serious
allegations of misconduct, she violated the Colorado Open Records Act by disclosing
confidential personnel information.
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92.
Millers unlawful actions against McDonald were taken in malicious, willful,
McDonalds rights as guaranteed by State laws prohibiting disclosure of confidential personnel
information.
As a direct, foreseeable, and proximate result of Millers intentional illegal
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conduct complained of herein, McDonald suffered injuries and damages, including but not
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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.
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THIRD CAUSE OF ACTION

(BREACH OF CONTRACT)
96.
Acting under color of law, Hancock promised McDonald that if McDonald would
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95.
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
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the entire duration of Hancocks term(s) of office as Denvers mayor.

When McDonald accepted this offer of employment, a contract was formed.
98.
On July 15, 2011, McDonald resigned his private sector corporate executive job.
99.
On July 18, 2011, McDonald began working for the City.
100.
McDonald satisfactorily performed all aspects of his job responsibilities.
101.
On May 21, 2012, McDonalds contract of employment with the City was
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97.
breached when Hancock fired McDonald.
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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
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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
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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
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employees to take, under color of law, against McDonald were done in malicious, willful,
faith and fair dealing.

104.
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McDonalds rights as guaranteed by State laws prohibiting breach of contract and requiring good
As a direct, foreseeable, and proximate result of the intentional illegal conduct
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complained of herein, McDonald suffered injuries and damages, including but not limited to lost
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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.

FOURTH CLAIM FOR RELIEF
(VIOLATION OF DUE PROCESS)
106.
107.
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.
These constitutionally protected property and/or liberty interests were infringed
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109.
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
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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
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media indicating that McDonald engaged in serious misconduct. Acting under color of law,
OMalley told the Colorado unemployment compensation office that McDonald was fired
These statements are false.
These statements impugn
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because he sexually harassed Doe
McDonalds good name, reputation, honor and integrity.

111.
Millers, Hancocks and OMalleys statements to the news media and the
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unemployment compensation office occurred in the course of terminating McDonalds
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employment with the City.

112.
Because they created and disseminated a false and defamatory impression about
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.
McDonald was not given a hearing or other opportunity to clear his name.
114.
Their statements foreclosed other employment opportunities for McDonald and
initially caused denial of McDonalds unemployment compensation benefits.
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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
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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,
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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.
As a direct, foreseeable, and proximate result of the intentional unlawful conduct
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117.
complained of herein, McDonald suffered injuries, damages and other losses, including but not
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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.
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RELIEF REQUESTED
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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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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,
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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
E.
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fees to the extent available under Federal and State laws;
Retain jurisdiction over this action to assure full compliance with the Orders of
the Court; and
Such other and further legal and equitable relief as this Court deems just and
reasonable under the circumstances.
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F.
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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.
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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:
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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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Filed 01/02/13 USDC Colorado Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

Jane Doe in her official capacity as a Denver Police Officer

CITY AND COUNTY OF DENVER,

MICHAEL HANCOCK, in his official capacity as Mayor,

Filed 01/02/13 USDC Colorado Page 2 of 17

JURISDICTION AND VENUE

This Court is vested with jurisdiction over McDonalds claims pursuant to 42

Pursuant to the Colorado Governmental Immunity Act, McDonald timely

provided notice of his State law tort claims.

McDonald has exhausted his administrative

this Court pursuant to 28 U.S.C. 1391.

Jane Doe is employed as a police officer by the City and

Defendant Michael Hancock is employed as the mayor of Denver, Colorado. He

Filed 01/02/13 USDC Colorado Page 3 of 17

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

for the City.

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

McDonald accepted this offer of employment.

To memorialize the agreement, on July 11, 2011, Hancock gave to McDonald an

On July 18, 2011, McDonald began working for the City.

Filed 01/02/13 USDC Colorado Page 4 of 17

assigned to him by Hancock or other members of Hancocks staff.

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

his personal cell phone, at least eight times.

On November 3, 2011, Doe twice telephoned McDonald, on his personal cell

Filed 01/02/13 USDC Colorado Page 5 of 17

his personal cell phone, at least five times.

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

his personal cell phone, at least nine times.

assistance of the Mayors Office in completing several of its tasks.

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

McDonald had no conversations, communications or other contact with Doe

after she telephoned him on March 14, 2012.

Filed 01/02/13 USDC Colorado Page 6 of 17

Building, 1437 Bannock Street, Denver, CO 80202.

When McDonald arrived, Hancocks deputy chief of staff Stephanie OMalley

McDonald denied that he sexually harassed Doe .

Friednash asked McDonald if McDonald would be willing to cooperate in an

with MSECs investigation.

(office keys, badges and other City identification).

while a police officer monitored his departure.

the MSEC investigation and a hearing.

Filed 01/02/13 USDC Colorado Page 7 of 17

When McDonald arrived at Racines Restaurant, OMalley and Friednash told

McDonald sexually harassed Doe .

McDonald did not receive a termination letter from the City.

misconduct or stating the reasons for his termination.

In mid-June 2012, news reporters telephoned McDonald requesting interviews

Filed 01/02/13 USDC Colorado Page 8 of 17

because of serious allegations of misconduct.

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.

Office produced on July 2, 2012.

Filed 01/02/13 USDC Colorado Page 9 of 17

to him a batestamp copy of the personnel file.

McDonalds Career Service Authority Personnel file.

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