United States District Court, D. Colorado
EFFLEY N. BROOKS, Plaintiff,
DENVER PUBLIC SCHOOLS, ALLEN SMITH, ANNIE LARKIN, EMILY HOLMES, ERICA KOUZMANOFF-VYMYSLICKY, EMILY GOERS, and NATALIE JACOBSEN, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty, United States Magistrate Judge.
seek to dismiss Plaintiff Effley N. Brook's Complaint in
part. According to Defendants, the Court should dismiss each
of Mr. Brooks' claims, except his Title VII claim against
Denver Public Schools (“DPS”) and his equal
protection claim against Allen Smith. The Honorable Robert E.
Blackburn referred Defendants' motion to this Court for
recommendation. The Court first holds that Mr. Brooks does
not plead a policy or custom underlying his 42 U.S.C. §
1981 claim against DPS. Next, the Court holds that Mr. Brooks
fails to state a retaliation claim under Title VII. The Court
then finds that Mr. Brooks did not exhaust the administrative
remedies for his Colorado Anti-Discrimination Act
(“CADA”) claim. Fourth, Mr. Brooks' First
Amendment retaliation claim fails, because he did not speak
on a matter of public concern. Fifth, the Court holds that
Mr. Brooks does not state an Equal Protection Clause
violation. Finally, Mr. Brooks does not allege a meeting of
the minds underlying his civil conspiracy claim. As such, the
Court recommends granting Defendants' Partial Motion to
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by Mr. Brooks in the Complaint, which the
Court takes as true for analysis under Fed.R.Civ.P. 12(b)(6).
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Brooks began working for DPS on April 4, 2016 as the manager
of training and employee development. Compl. ¶ 16, ECF
No. 3. In September 2016 Mr. Brooks attended a retreat that
was designed to foster dialog about how different teams
within DPS work together. Id. ¶ 17. Defendants
Larkin, Holmes, Kouzmanoff-Vymyslicky, Goers, and Jacobsen
(collectively the “Carson Defendants”), who are
all employed at Carson Elementary School, also participated
in the retreat. Id. ¶¶ 6-10, 28-29.
December 1, 2016, after the scheduled activities for the day
were completed, some employees participated in an event
called “fun night.” Id. ¶ 24.
During this evening activity, employees consumed alcohol and
played games, such as “Cards Against
Humanity.” Id. ¶¶ 25-34. At the
beginning of the night, Mr. Brooks took shots of tequila with
a fellow employee and joked with a female colleague about
participating in a “birthday spank line.”
Id. ¶¶ 24-26. After Mr. Brooks played
“Cards Against Humanity, ” he participated in an
drinking game with the Carson Defendants, who were at the
ping pong table. Id. ¶¶ 27-28. Mr. Brooks
told the Carson Defendants he had an inappropriate joke to
share, called the “leprechaun joke, ” and the
Carson Defendants stated that they wanted to hear it.
Id. ¶¶ 29-30. After Mr. Brooks told the
joke, some of the Carson Defendants walked away from the ping
pong table. Id. ¶ 31. Mr. Brooks asked Ms.
Kouzmanoff-Vymyslicky if the Carson Defendants were offended,
and she replied, “Maybe you should have said that it
was really graphic.” Id. The Carson Defendants
left the fun night approximately ten minutes later.
Id. ¶ 32. At 10:30 p.m., Patricia Hurrieta, the
executive director of the Culture Equity Leadership Team
(“CELT”), sent Mr. Brooks a text message
informing him that the team leads plan to meet at 6:45 a.m.
the next day. Id. ¶ 33. Mr. Brooks continued to
play “Cards Against Humanity” until 10:45 p.m.
when he went to his room. Id.
next morning, Mr. Brooks met with Ms. Hurrieta and Jeff Wein,
the DPS project lead of the CELT. Id. ¶ 34. The
parties discussed the Carson Defendants' allegations that
Mr. Brooks shared confidential information. Id.
¶ 34. Further, Ms. Hurrieta and Mr. Wein told Mr. Brooks
that he cannot be trusted and that they do not feel
comfortable around him. Id. ¶ 35. They then
asked Mr. Brooks to write a statement detailing what happened
at the fun night. Id. ¶¶ 35-36. After Mr.
Brooks spoke with individuals from human resources, DPS
placed him on paid administrative leave. Id. ¶
December 6, 2016, Mr. Brooks met with Stacey Dvergsdal (the
director of the CELT), Mr. Smith (the associate chief of the
CELT), and Ms. Hurrieta. Id. ¶ 37. Mr. Smith
informed Mr. Brooks they were concerned about sexual
harassment. Id. Mr. Brooks replied that the
leprechaun joke does not constitute sexual harassment or a
terminable offense. Id. ¶ 38. Ms. Hurrieta then
told Mr. Brooks, “We don't know what you might do
if you come back.” Id. At this point, Mr.
Smith discussed Mr. Brooks' excessive drinking and other
conversations Mr. Brooks had at the fun night. Id.
¶ 39. Mr. Brooks then explained how other employees
engaged in inappropriate conduct, and he stated that being
singled out is the “very thing we're working to
address with the African-American Task Force, different
standards for different people.” Id.
¶¶ 40-42. Mr. Smith told Mr. Brooks not to mention
the African-American Task Force, and he ended the meeting.
Id. ¶ 42.
that evening, Christin Sahm-McKe, DPS' human resources
representative, contacted Mr. Brooks to inform him that DPS
reached a decision for corrective action. Id. ¶
43. Ms. Sahm-McKe and Mr. Brooks scheduled a meeting for
December 15, 2016 to discuss the decision. Id. At
that meeting, Mr. Smith and Ms. Sahm-McKe presented Mr.
Brooks with a draft termination letter and a settlement
agreement to consider as an alternative to termination.
Id. ¶¶ 44-45. Mr. Brooks informed Mr.
Smith and Ms. Sahm-McKe that he would not sign the settlement
agreement, “since it is clear he is ‘being
singled out as a stereotypical crass black man, held to a
different standard than the non-African American attendees at
the retreat.'” Id. ¶ 46. According to
Mr. Brooks, he was the only employee disciplined for behavior
at the fun night even though other individuals engaged in
unprofessional conduct. Id. ¶ 47.
formally terminated Mr. Brooks on January 7, 2017.
Id. ¶ 51. Mr. Brooks subsequently requested a
post-termination hearing, which took place on February 3,
2017. Id. ¶¶ 52-53. Along with Mr. Brooks,
Mr. Smith, Ms. Sahm-McKe, and a hearing officer were present
at the hearing. Id. ¶ 53. Mr. Brooks first
explained what happened at the fun night, and Mr. Smith gave
additional reasons for Mr. Brooks' termination.
Id. ¶¶ 54-59. Mr. Brooks then complained
that DPS holds its African-American employees to different
standards than its non-minority employees. Id.
¶ 61. After Mr. Smith stated that he heard Mr. Brooks
tell the leprechaun joke at the retreat, the officer ended
the hearing. Id. ¶ 62. On February 8, 2017, the
hearing officer upheld Mr. Brooks'
termination.Id. ¶ 63. Mr. Brooks filed a
charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on May 16, 2017.
Id. ¶ 49. The EEOC issued a notice of right to
sue on June 6, 2017. Id.
on these factual allegations, Mr. Brooks filed his Complaint
in state court on July 19, 2017. ECF No. 3. Mr. Brooks
asserts seven causes of action: (1) race discrimination in
violation of Title VII against DPS; (2) race discrimination
in violation of 42 U.S.C. § 1981 against
(3) Title VII retaliation against DPS; (4) violation of the
CADA against DPS; (5) First Amendment retaliation against
DPS, Mr. Smith, and the Carson Defendants; (6) equal
protection violations against all Defendants; and (7)
conspiracy against Mr. Smith and the Carson Defendants.
Compl. ¶¶ 64-113. Defendants removed the case to
this Court on August 15, 2017. Notice of Removal, ECF No. 1.
responded to the Complaint by filing an Answer, ECF No. 17,
and the present Partial Motion to Dismiss Complaint, ECF No.
18. Defendants argue that, with the exception of the Title
VII discrimination claim and the equal protection claim
against Mr. Smith, the Court should dismiss Mr. Brooks'
Complaint. Mot. to Dismiss 5-15. Mr. Brooks filed a response
brief on September 28, 2017, Resp. to Mot. to Dismiss, ECF
No. 23, and Defendants replied on October 18, 2017. Reply in
Supp. of Mot. to Dismiss, ECF No. 27.
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
pleaded 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.
Oklahoma, 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).
Second Cause of Action: Violation of 42 U.S.C. §
Brooks' second claim asserts DPS discriminated against
him based on his race in violation of 42 U.S.C. § 1981.
Compl. ¶¶ 64-70. Defendants contend Mr. Brooks
fails to state a claim, because he does not allege DPS had a
policy or custom of unlawful discrimination. Mot. to Dismiss
6-8, ECF No. 18. Mr. Brooks responds that DPS had a policy or
custom of regularly “consuming alcohol and otherwise
engaging in frivolous conversation.” Resp. to Mot. to
Dismiss 7, ECF No. 23.
1981 grants “all persons within the jurisdiction of the
United States . . . the same right . . . to make and enforce
contracts.” 42 U.S.C. § 1981. Therefore, it
“prohibits not only racial discrimination [in the
workplace] but also retaliation against those who oppose
[discrimination].” Hannah v. Cowlishaw, 628 F.
App'x 629, 631-32 (10th Cir. 2016) (quoting Univ. of
Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct.
2517, 2529 (2013)) (alterations in original). To assert a
violation of § 1981 against a municipality, a plaintiff
must establish entity liability under § 1983 in addition
to pleading race discrimination. Jett, 491 U.S. at
735; Bolden, 441 F.3d at 1137 (holding that the 1991
amendments to § 1981 did not overrule Jett).
Municipal liability under § 1983 requires the existence
of an official policy or custom, a direct causal link between
the policy or custom and the constitutional injury, and a
showing that the defendant established the policy with
deliberate indifference to an almost inevitable
constitutional injury. Schneider v. City of Grand
Junction Police Dep't, 717 F.3d 760, 767-69 (10th
Cir. 2013). To establish an official policy or custom, a
plaintiff may point to: (1) a formal regulation or policy,
(2) an informal custom that is so ...