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Brooks v. Denver Public Schools

United States District Court, D. Colorado

November 16, 2017

EFFLEY N. BROOKS, Plaintiff,
v.
DENVER PUBLIC SCHOOLS, ALLEN SMITH, ANNIE LARKIN, EMILY HOLMES, ERICA KOUZMANOFF-VYMYSLICKY, EMILY GOERS, and NATALIE JACOBSEN, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty, United States Magistrate Judge.

         Defendants 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 Dismiss Complaint.

         BACKGROUND

         I. Facts

         The 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).

         Mr. 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.

         On 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.”[1] 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.

         The 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. ¶ 36.

         On 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.

         Later 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.

         DPS 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.[2]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.

         II. Procedural History

         Based 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 DPS;[3] (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;[4] (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.

         Defendants 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.

         LEGAL STANDARDS

         “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 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.

         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. 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.

         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).

         ANALYSIS

         I. Second Cause of Action: Violation of 42 U.S.C. § 1981

         Mr. 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.[5] 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.

         Section 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 ...


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