United States District Court, D. Colorado
Y. Daniel Senior United States District Judge
INTRODUCTION AND BACKGROUND
MATTER is before the Court on both Defendant Jerry
Martinez's Motion to Dismiss Pursuant to Fed.R.Civ.P.
12(b)(1) and 12(b)(6) and Defendants Tony Smith and Denver
Public Schools' Motion to Dismiss. (ECF Nos. 17 and 18).
February 3, 2017, Plaintiff filed his Complaint in the
District Court for the City and County of Denver, Colorado,
alleging a First Amendment retaliation claim under 42 U.S.C.
§ 1983 and a state law claim for intentional
interference with contract. On March 2, 2017, the Defendants
removed the action to this Court based on federal question
jurisdiction. Plaintiff's claims arise from his
employment as an Assistant Principal with the Denver Public
School District (“District”) and are asserted
against Jerry Martinez, a Principal at the Noel Community
Arts School (“Noel”); Tony Smith, a deputy
instructional superintendent for the District; and the
a former Assistant Principal for grades 6-12 at Noel, alleges
that he was terminated from his employment after speaking out
on matters of public concern. Specifically, in August 2015,
the school was conducting a teacher survey of the two Noel
school Principals, Jerry Martinez and Suzanne Morey. At all
relevant times, Martinez was Noel's Chief Operating
Officer while Morey was the Chief Academic Officer. On August
28, 2015, Martinez informed Plaintiff that Martinez and an
intern had “intentionally falsified several [teacher]
surveys to lower the evaluation of Ms. Morey.” (Compl.
¶¶ 1-6). Plaintiff alleges that Defendant Smith was
aware of Martinez's survey-falsification plan
(“Plan”) and had given his approval. (Compl.
¶ 5). The Plan apparently worked because “Ms.
Morey was demoted and moved to a different position in
December, 2015, and told to resign, in March, 2016.”
(Compl. ¶ 6).
Smith was involved in the Plan, Plaintiff “went above
Mr. Smith's head to Mr. Johnson, the instructional
supervisor, and, on September 17, 2015, reported the fraud to
him.” (Compl. ¶ 7). Johnson reported
Plaintiff's concerns about the surveys to Martinez.
(Compl. ¶¶ 7-8). Also, at Johnson's direction,
Plaintiff reported the Plan to Noel's human resources
department. Martinez ultimately “admitted that he had
taken the survey intended solely for the teachers, but, in
spite of this admission, human resources came to no
conclusion regarding the existence of the fraud.”
(Compl. ¶ 8).
alleges that following his report to Johnson, Martinez began
to retaliate against him. Plaintiff had hired a dean, Charles
Jones, for his middle school. Martinez “told this dean
that [Plaintiff] had told the dean's principal, Ms.
Morey, that the dean was not doing his job, that he needed to
be replaced, and that he was incompetent. This tension became
so bad that the dean would not even talk to [Plaintiff].
[Plaintiff] determined what had happened and took the dean to
Mr. Martinez, who admitted to the dean that he had not been
telling the truth.” (Compl. ¶¶ 9-10).
in October 2015, Plaintiff drafted “on the computer a
few pages of responses to questions from Mr. Smith. To
sabotage [Plaintiff], Mr. Martinez deleted [Plaintiff's]
written responses to these questions while not touching the
written responses of other people that were in the
computer.” (Compl. ¶ 11). In November 2015,
Martinez “publicly blamed” Plaintiff for
decisions Martinez had made about recess duties. Also, in
November 2015, Noel's high school administratively
separated from the middle school, and Plaintiff and Morey
“were demoted and assigned to the middle school.”
(Compl. ¶¶ 12-13).
also alleges that Smith began to retaliate against him after
he reported the Plan to Johnson. In November 2015, Smith
directed Plaintiff to cease speaking with human resources or
Johnson about any subject. “In February, 2016, Mr.
Smith began telling the teaching staff that the building
culture was toxic because [Plaintiff and] Ms. Morey had
created a culture of jumping the chain of command.”
(Compl. ¶¶ 15-16). Smith further made the decision
to remove the dean Plaintiff had hired. (Compl. ¶ 19).
further alleges that Smith impeded his ability to remain in
his position at Noel when a new principal was hired and
vetoed Plaintiff's attempts to secure a job with another
school in the District. Plaintiff “was not even told of
the interview process for his own position until after the
finalists were selected.” (Compl. ¶ 20). “On
April 11, 2016, [Plaintiff] interviewed with the Collegiate
Prep Academy, another high school in the Denver public school
system. The interview went well and the principal in charge
of the interview team said that the team was impressed with
[Plaintiff]. However, after the interview, Mr. Smith spoke
with the team and told the team that [Plaintiff] lacked the
skill set needed for the job. The team disagreed but
eventually capitulated because it knew that it could not hire
[Plaintiff] if Mr. Smith disapproved.” (Compl. ¶
3, 2016, the District asked Plaintiff for his resignation.
Plaintiff refused, and his contract expired by its own terms
on August 1, 2016.
STANDARD OF REVIEW
Fed. R. Civ. P. 12(b)(6)
seek dismissal of Plaintiff's First Amendment retaliation
claim and state law claim pursuant to Fed.R.Civ.P. 12(b)(6).
A defendant may move to dismiss a claim under Rule 12(b)(6)
where the plaintiff has failed “to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
The Court's inquiry is “whether the complaint
contains ‘enough facts to state a claim to relief that
is plausible on its face.'” Ridge at Red Hawk,
LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007)). “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly,
550 U.S. at 570). When analyzing a 12(b)(6) motion,
“all well-pleaded factual allegations ... are accepted
as true and viewed in the light most favorable to the
nonmoving party.” Sutto ...