United States District Court, D. Colorado
JOHN M. McDONALD, Plaintiff,
SCHOOL DISTRICT NO. 1 IN THE COUNTY OF DENVER AND STATE OF COLORADO, ELDRIDGE GREER, and NORMA GIRON, Defendants
For John M. McDonald, Plaintiff: Cathy L. Cooper, LEAD ATTORNEY, Colorado Education Association, Denver, CO.
For School District No. 1 in the County of Denver and State of Colorado, Eldridge Greer, Norma Giron, Defendants: Michael Brent Case, LEAD ATTORNEY, Matt Ratterman, Susanne Naomi Starecki Kim, Semple, Farrington & Everall, P.C., Denver, CO.
PHILIP A. BRIMMER, United States District Judge.
This matter is before the Court on the Motion to Dismiss [Docket No. 25] and the Motion for Summary Judgment [Docket No. 58] filed by defendants School District No. 1, in the City and County of Denver, State of Colorado (the " District" ), Dr. Eldridge Greer, and Norma Giron (collectively, " defendants" ). This Court has subject matter jurisdiction over plaintiff's federal law claims pursuant to 28 U.S.C. § 1331 and jurisdiction over plaintiff's state law claims pursuant to § 1367.
Plaintiff claims that he suffered racial, gender, age, and retaliatory discrimination during his employment as a social worker with the District. Plaintiff accuses the District, Fairview Elementary (" Fairview" ) principal Ms. Giron, and Department of Social Work and Psychological Services manager Dr. Greer of engaging in discriminatory conduct from 2009 until the District's Board of Education (the " School Board" ) terminated his employment in January 2012.
On November 21, 2013, plaintiff filed this case. Docket No. 1. Plaintiff brings a race and sex discrimination claim against the District pursuant to Title VII of the Civil Rights Act, an age discrimination claim against the District pursuant to the Age Discrimination in Employment Act (" ADEA" ), a First Amendment retaliation claim against defendants pursuant to 42 U.S.C.§ 1983, a state law interference with contract and/or prospective business advantage claim against Dr. Greer and Ms. Giron, and a state law breach of contract claim against the District. Id. at 17-20.
On March 17, 2014, defendants filed the present Garcetti/Pickering motion to dismiss, arguing, in part, that portions of plaintiff's Title VII, ADEA, and First Amendment claims are barred by the statute of limitations. Docket No. 25 at 6, 8-9. On November 10, 2014, defendants filed the present motion for summary judgment. Docket No. 58. Both motions are fully briefed and ripe for disposition.
I. MOTION TO DISMISS
From 1989 to 2012, plaintiff John McDonald was employed by the District as a social worker. Plaintiff is an African American male who was over the age of 60 at all times relevant. Plaintiff alleges that, as early as 2009, Dr. Greer determined that plaintiff " did not belong anywhere in DPS." Docket No. 1 at 7, ¶ 31. Plaintiff further alleges that his immediate supervisor at Fairview, Ms. Giron, documented and disciplined plaintiff for multiple minor infractions and encouraged members of the teaching staff to complain about plaintiff during the 2009-2010 school year. Id. at 9, ¶ 42. Before the start of the 2010-2011 school year, plaintiff was placed on a remediation plan, which plaintiff claims placed unreasonable demands upon him. Id. at 15, ¶ 59. Ms. Giron subsequently recommended plaintiff's dismissal. Id. at 16, ¶ 61. Upon hearing of Ms. Giron's recommendation, the principal of Place Bridge Academy (" Place Bridge" ) asked to have plaintiff assigned to her school, but the request was denied. Id. at 16, ¶ 63. On January 24, 2012, the District School Board terminated plaintiff's employment and the District placed a " do not rehire flag" on his personnel file. Id. at 16, ¶ ¶ 63-65.
During his employment, plaintiff voiced concerns to Dr. Greer during department meetings and in other forums regarding the declining availability of social work services to families and students within the District. Id. at 10-11, ¶ ¶ 44. At all times relevant, plaintiff also voiced concerns to District administration and staff regarding the District's misuse of federal funds collected as a result of providing social work services to students and families. Id. at 19, ¶ 82.
On April 27, 2012, plaintiff filed a Charge of Discrimination with the Equal Opportunity Employment Commission (" EEOC" ) alleging discrimination on the basis of race, sex, and age. Id. at 3, ¶ 9. On August 23, 2013, plaintiff received a right to sue letter from the EEOC. Id. at 3, ¶ 10.
B. Standard of Review
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a complaint must allege enough factual matter that, taken as true, makes the plaintiff's " claim to relief . . . plausible on its face." Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir. 2012) (citing Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not shown--that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and alteration marks omitted); see also Khalik, 671 F.3d at 1190 (" A plaintiff must nudge [his] claims across the line from conceivable to plausible in order to survive a motion to dismiss." (quoting Twombly, 550 U.S. at 570)). If a complaint's allegations are " so general that they encompass a wide swath of conduct, much of it innocent," then plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modern rules of pleading are somewhat forgiving, " a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008) (alteration marks omitted ).
For purposes of resolving defendants' motion to dismiss, the Court considers only the allegations contained in plaintiff's complaint. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
C. Title VII and ADEA Claims
Defendants argue that plaintiff's Title VII and ADEA claims are limited to acts that occurred on or after July 2, 2011 -- 300 days before plaintiff filed his charge of discrimination with the EEOC. Docket No. 25 at 6. " An employee wishing to challenge an employment practice under Title VII [and the ADEA] must first file a 'charge' of discrimination with the EEOC." Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1163 (10th Cir. 2007); Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005) (applying Title VII administrative exhaustion requirements to ADEA claims). Such a charge must be filed within " three hundred days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); accord 29 U.S.C. § 626(d)(1)(B). If the alleged unlawful incident occurs outside the 300-day window, a plaintiff will " lose the ability to recover for it." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
" The EEOC charging period is triggered when a discrete unlawful practice takes place," such as when a discriminatory decision is " made and communicated" to the plaintiff. Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 628-29, 127 S.Ct. 2162, 167 L.Ed.2d 982 (2007), superseded on other grounds by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2 (Jan. 29, 2009) (amending 42 U.S.C. § 2000e-5(e)). " Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable 'unlawful employment practice.'" Morgan, 536 U.S. at 114. As a result, an EEOC charge covers only those discrete acts that occurred within the appropriate time period. Id. Although a plaintiff may allege that numerous discriminatory or retaliatory acts occurred throughout his or her term of employment, " only incidents that took place within the timely filing period are actionable." Id.
Defendants argue that the " only adverse employment action in Mr. McDonald's complaint that occurred on or after July 2, 2012 is his termination, which occurred in January of 2012." Docket No. 25 at 6-7. Plaintiff asserts that the District placing a " do not rehire" flag on plaintiff's personnel file also constitutes a discrete employment action. Docket No. 30 at 4. However, plaintiff does not identify any other discrete acts that occurred within the 300-day window and none are apparent. Rather, plaintiff argues that, because he has alleged a pattern and practice of adverse actions, the continuing violation doctrine should be applied to his Title VII and ADEA claims to render actionable any conduct taking place outside the 300-day window. Docket No. 30 at 5. In support of his argument, plaintiff cites, inter alia, Bruno v. W. Elec. Co., 829 F.2d 957, 961 (10th Cir. 1987), a case which upheld a district court's ruling that the plaintiff's ADEA claims were timely pursuant to the continuing violation doctrine. The court described the continuing violation doctrine as applying to " a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the [limitations] period." Id. at 961 (quotations omitted); see also Docket No. 30 at 5 (citing Furr v. AT & T Techs., Inc., 824 F.2d 1537, 1543 (10th Cir. 1987) (" claim of age discrimination, however, may be based on a continuing policy and practice of discrimination that began before the statutory filing period" ).
Plaintiff's argument is unpersuasive. In Morgan, the Supreme Court held that the continuing violation doctrine did not apply to discriminatory and retaliatory adverse employment decisions. 536 U.S. at 114. In so doing, the Court held that discrete discriminatory acts occurring outside the 300-day window are not actionable even when such acts " are related to acts alleged in timely filed charges." Id. at 113. The Court was careful to distinguish " discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire" from hostile work environment claims, which are composed of " a series of separate acts that collectively constitute one 'unlawful employment practice.'" Id. at 117. The Supreme Court held that, in the latter case, " the employee need only file a charge within . . . 300 days of any act that is part of the hostile work environment." Id. at 118.
Although it does not appear that Bruno and Furr have been explicitly overruled, the Tenth Circuit held that " Morgan implicitly overturns prior Tenth Circuit law in that plaintiffs are now expressly precluded from establishing a continuing violation exception for alleged discrete acts of discrimination occurring prior to the limitations period, even if sufficiently related to those acts occurring within the limitations period." Davidson v. Am. Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003). " This remains true even if the discrete act was part of a company-wide or systemic policy." Id.; see also Morgan, 536 U.S. at 111 (" We have repeatedly interpreted the term 'practice' to apply to a discrete act or single 'occurrence,' even when it has a connection to other acts." ). Although plaintiff argues that " successive poor evaluations and repeated false disciplinary memos" evidence the District's discriminatory policy, Docket No. 30 at 6, such acts appear to be discrete acts of discrimination. Plaintiff does not argue otherwise or direct the Court to additional conduct that does not f all into that category. In light of Morgan and corresponding Tenth Circuit precedent, the Court declines to apply the continuing violation doctrine to plaintiff's Title VII and ADEA claims. Because plaintiff's charge of discrimination was filed on April 27, 2012, plaintiff's Title VII and ADEA claims are therefore dismissed to the extent they ...