United States District Court, D. Colorado
PHILIP A. BRIMMER, District Judge.
This matter is before the Court on the Recommendation of United States Magistrate Judge (the "Recommendation") [Docket No. 31]. This case arises out of the 2011 termination of plaintiff Joaquin Gonzales from his position as a Chief Inspector for the Zoning and Neighborhood Inspection Service of the City and County of Denver. The magistrate judge recommends that the Court deny Defendants' Motion to Dismiss [Docket No. 13] with respect to defendant Michael Sizemore. On January 23, 2014, Mr. Sizemore filed timely objections [Docket No. 32] to the Recommendation. On February 7, 2014 the Court received notice that Mr. Sizemore had filed for bankruptcy. Docket No. 34. Accordingly, on February 19, 2014, the Court administratively closed the case pending notice from the parties that the automatic stay had been lifted. Docket No. 41 at 9, 10. On April 22, 2014, the Court reopened the case, Docket No. 44, af ter plaintiff indicated that he had obtained relief from the automatic stay on April 15, 2014 to pursue his claim against Mr. Sizemore. Docket No. 43. The Court will "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3).
The relevant factual history is set forth in the Recommendation and will not be recited here. See Docket No. 31 at 1-3. The magistrate judge recommends that the Court deny defendants' motion to dismiss plaintiff's Equal Protection claim against Mr. Sizemore because Mr. Sizemore, having been sued in his individual capacity, is not in privity with the City. Docket No. 31 at 9-11. Mr. Sizemore objects to the Recommendation in part on the basis that plaintiff is precluded from relitigating the issue of discrimination. Docket No. 32 at 8.
Issue preclusion prevents relitigation of only those specific issues that were actually litigated and decided in a previous proceeding. Gallegos v. Colo. Ground Water Comm'n, 147 P.3d 20, 32 (Colo. 2006). It applies where (1) the issue in question was actually litigated and necessarily adjudicated; (2) the party against whom preclusion is sought was a party or is in privity with a party to the previous proceeding; (3) the previous proceeding ended in a final judgment on the merits; and (4) the party against whom estoppel is sought had a full and fair opportunity to litigate the issue. Id. An issue is "actually litigated" if it is "raised by the parties in the prior action" and it is "necessarily adjudicated" if "a determination on that issue [is] necessary to a judgment." Stone v. Dep't of Aviation, 290 F.Appx. 117, 123 (10th Cir. 2008) (internal citation omitted).
Mr. Sizemore argues that the "sole issue [in this case] is whether Defendants discriminated against Plaintiff on the basis of his national origin when he was dismissed from his employment" and that this "issue has been fully litigated in state court." Docket No. 32 at 8. Plaintiff does not address Mr. Sizemore's issue preclusion argument in his response to Mr. Sizemore's objections. See Docket No. 39.
The state court addressed the following arguments advanced by plaintiff:
(1) the hearing officer abused her discretion by placing the burden on Mr. Gonzalez to disprove an essential fact underlying his dismissal; (2) the hearing officer abused her discretion by failing to compare Mr. Gonzales' actions to those of his peer, Kristofek, for purposes of his claim of national-origin discrimination; (3) the CSA Board failed to address his national origin discrimination claim in its review of the hearing officer's initial determination; and (4) there is no competent evidence in the record to support charges of dishonesty and/or failure to maintain satisfactory working relationships.
Docket No. 32-3 at 7. With respect to plaintiff's second argument, the state court found that:
The hearing officer's findings demonstrate that Kristofek was not similarly situated to Mr. Gonzales with respect to the reasons for termination. There was no evidence that Kristofek lied to his colleagues and/or his superiors about granting paid leave. Further, in the one instance that Kristofek granted such leave, he staggered the time off to ensure office coverage. This was done under the guidance of his more experienced colleague, Mr. Gonzales, and occurred early in his tenure when his manager, Sizemore, was on leave.
Docket No. 13-3 at 9. With respect to plaintiff's third argument, the state court found that:
[T]he Board did address Mr. Gonzales' discrimination defense. On page three of its Decision and Order, the Board listed all of the hearing officers' findings, including her finding that "the evidence as a whole does not establish that the dismissal was motivated by an intent to discriminate against [Mr. Gonzales] because of his national origin, Hispanic." On the next page of its Order, the Board considered Mr. Gonzales' appeal and upheld the hearing officer's findings, stating "the record demonstrates more than sufficient evidence supporting the Hearing Officer's findings and conclusions and the decision is therefore not clearly erroneous."...
Here, the CSA Board finding, "taken together with reasonable implications based upon its assessment of the totality of the evidence presented at the hearing, are adequate to apprise the Court of the basis of its decision." Thus the Court finds the Board did not err as Mr. Gonzales claims.
Docket No. 13-3 at 9-10 (internal citations omitted). The state court also found that there was "competent evidence to support [plaintiff's] termination for dishonesty and failure to ...