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Vazirabadi v. Boasberg

United States District Court, D. Colorado

October 10, 2017

TOM BOASBERG, in his individual and official capacities, TERRI SAHLI, in her individual and official capacities, DENVER PUBLIC SCHOOLS, JOHN AND JANE DOES 1 THROUGH 20, JOHN DOE CORPORATIONS 1 THROUGH 10, and JOHN DOE ENTITIES 1 THROUGH 10, all whose true names are unknown, Defendants.



         Plaintiff Alireza Vazirabadi (“Vazirabadi”), proceeding pro se, initiated this employment discrimination action against Denver Public Schools (“DPS”) and the individual Defendants, Tom Boasberg (“Boasberg”) and Terri Sahli (“Sahli”) (collectively, “DPS Defendants”) on May 15, 2017. Vazirabadi filed the operative First Amended Complaint as a matter of course on July 14, 2017 alleging essentially that Defendants violated his rights under the Fourteenth Amendment to due process and equal protection of the law and under the First Amendment's Establishment Clause (religious discrimination) by engaging in “extreme vetting” of his employment application, and violated Title VII of the Civil Rights Act of 1964, as amended (“Title VII”) based on Vazirabadi's national origin. See First Amended Complaint (“FAC”), ECF No. 26.

         The DPS Defendants filed the present motion to dismiss in response to the FAC on July 28, 2017, arguing that Vazirabadi's facts support neither his constitutional claims nor his Title VII national origin claim and he has failed to exhaust administrative remedies as to any claim for religious discrimination under Title VII. Construing the allegations liberally and taking them as true, the Court finds that Vazirabadi fails to state violations of his constitutional rights, but plausibly states a violation of Title VII and, thus, the Court recommends that the DPS Defendants' motion be granted in part and denied in part.

         I. Statement of Facts

         The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by Vazirabadi in the operative FAC, which are taken as true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         On or about August 3, 2015, Vazirabadi responded to the DPS Defendants' job advertisement for the position of Process Improvement Engineer (“PIE”), which required five years' experience. His response included submission of his Industrial Engineer resume with a two-page cover letter itemizing the job requirements against his ten-plus years of direct experience. The advertised position did not require or prefer bilingual applicants. Vazirabadi registered at to submit his resume and cover letter and was asked to answer certain questions. For example, from a pull-down menu listing “Arabic, ” “Somali, ” “Amharic, ” and “Swahili” languages, Vazirabadi was asked in which of the languages he is bilingual. The menu also stated: “If your language was not listed above... please indicate it here.” Vazirabadi entered “Farsi/Persian” as his other language, which Vazirabadi believes identified him as Iranian and Muslim.

         A report attached to the FAC reflects that in 2014, DPS had enrolled a total of 87, 389 students and, of those students, 1, 605 (or 1.84%) were “Non-Exited” English Language Learners (“ELLs”). FAC Ex. 2.[1] The top five languages (making up the majority of the ELLs) spoken were Arabic, Vietnamese, Somali, Nepali, and Amharic. Id.

         On or about August 31, 2015, Vazirabadi had his first interview by telephone with DPS's hiring manager, Karen J., who states she was “drawn” to his application by his “meticulous” itemization of job requirements against matched experience. Karen J. told Vazirabadi that he would be considered for two open PIE positions. On or about September 10, 2015, Vazirabadi met with Karen J. and DPS's Process Improvement team members, Jeff G., Katie W., and Andrea M., for a sixty-minute in-person panel interview. Vazirabadi believed he had great interaction and chemistry with the panel members. During the last ten minutes of the interview, the panel members asked Vazirabadi to facilitate the meeting for an outside group activity. Vazirabadi believed he performed “greatly.” Just before he left the interview room, Jeff G. asked him, “do you like to be called Alireza or Ali?” Vazirabadi noticed the other panel members awaiting his response and he answered, “Ali.” Vazirabadi considered this question to be a positive indication of his interview performance. Then, on September 15, 2015, Vazirabadi met with Defendant Sahli, Director of Enterprise Risk Management and Process Improvement, for a thirty-minute interview.

         On or about September 23, 2015, Karen J. emailed Vazirabadi to inform him that “it was a tough decision and, in the end, we decided on other candidates.” Reading this email made Vazirabadi feel emotionally and physically sick, numb, humiliated, and rejected, because he was “100% sure” he had the perfect experience and educational background for the position and performed well in the interviews.

         The candidates hired by DPS for the PIE positions were a “28-year-old Asian male” and a “29-to-33-year-old” female whose national origin is not indicated.

         II. Legal Standards[2]

         A. Dismissal under Fed.R.Civ.P. 12(b)(6)

         “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.'” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 678-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

         Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

         However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action, ” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).

         B. Treatment of a Pro Se Plaintiff's Complaint

         A federal court must construe a pro se plaintiff's “pleadings liberally, applying a less stringent standard than is applicable to pleadings filed by lawyers. [The] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf.” Whitney v. N. M., 113 F.3d 1170, 1173-74 (10th Cir. 1997) (quotations and citations omitted). The Tenth Circuit interpreted this rule to mean, “if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requireme nts.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, this interpretation is qualified in that it is not “the proper function of the district court to assume the role of advocate for the pro se litigant.” Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989)).

         III. Analysis

         A. Section 1983 - Official-Capacity Claims

         1. Boasberg and Sahli

         The Court finds first that Plaintiff's official-capacity claims against Boasberg and Sahli are duplicative of his claims against DPS. “[A] section 1983 suit against a municipality and a suit against a municipal official acting in his or her official capacity are the same.” Stuart v. Jackson, 24 F. App'x 943, 956 (10th Cir. 2001) (quoting Myers v. Okla. Cnty. Bd. of Cnty .Comm'rs, 151 F.3d 1313, 1316 n.2 (10th Cir. 1998)); see also Watson v. City of Kan. City, 857 F.2d 690, 695 (10th Cir. 1988) (treating as one claim the plaintiff's claim against a municipality and claims against municipal officials acting in their official capacities). As the Supreme Court explained, “[o]fficial-capacity suits . . . generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against an entity.” Ky. v. Graham, 473 U.S. 159, 165-66 (1985) (citations and quotations omitted).

         Consequently, where a plaintiff sues both the municipality and municipal official in an official capacity under the same theory of recovery, courts have dismissed the official capacity claim as “duplicative” or “redundant” of the claim against the municipal entity. Barr v. City of Albuquerque, No. 12-CV-01109-GBW, 2014 WL 11497831, at *13 (D. N.M. Apr. 8, 2014) (citing Starrett v. Wadley, 876 F.2d 808, 813 (10th Cir. 1989) (despite presence of official capacity claim, “the appeal effectively is between only two parties: the County and plaintiff”)); see also Doe v. Douglas Cnty. Sch. Dist., 775 F.Supp. 1414, 1416 (D. Colo. 1991) (“redundant” official capacity claim dismissed); Riendl v. City of Leavenworth, 361 F.Supp.2d 1294, 1302 (D. Kan. 2005) (same).

         As such, the Court respectfully recommends that Plaintiff's claims against Defendants Boasberg and Sahli in their official capacities be dismissed. See Hays v. Ellis, 331 F.Supp.2d 1303, 1306 n.2 (D. Colo. 2004).

         2. DPS

         “[M]unicipal defendants-public school districts and school boards included-can't be held liable under 42 U.S.C. § 1983 solely because they employ a person who violated the plaintiff's constitutional rights.” Lawrence v. Sch. Dist. No. 1, 560 F. App'x 791, 794 (10th Cir. 2014) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978)); see also Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993) (“[a] municipality may not be held liable under § 1983 solely because its employees inflicted injury on the plaintiff.”) (quoting Monell, 436 U.S. at 692). Hence, local governments can be liable under Section 1983 “only for their own illegal acts.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation and citations omitted) (emphasis in original)..

         Thus, to establish a Section 1983 claim against a municipality, a plaintiff must “show that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury” by plausibly alleging (1) the existence of a municipal policy or custom, (2) causation, and (3) state of mind. Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013).

         In establishing the first requirement, a plaintiff may show a municipal policy or custom in ...

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