United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
MICHAEL E. HEGARTY UNITED STATES MAGISTRATE JUDGE.
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
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.
Statement of Facts
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
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
careers.dpsk12.org 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
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.
The top five languages (making up the majority of the ELLs)
spoken were Arabic, Vietnamese, Somali, Nepali, and Amharic.
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
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
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.
Dismissal under Fed.R.Civ.P. 12(b)(6)
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.
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.
“[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).
Treatment of a Pro Se Plaintiff's Complaint
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.
Section 1983 - Official-Capacity Claims
Boasberg and Sahli
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
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).
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).
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
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
establishing the first requirement, a plaintiff may show a
municipal policy or custom in ...