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Vazirabadi v. Boasberg

United States District Court, D. Colorado

March 30, 2018

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, and DOE ENTITIES 1 THROUGH 10, whose true names are unknown, Defendants.


          William J. Martínez United States District Judge.

         Plaintiff Alireza Vazirabadi (“Plaintiff”), proceeding pro se, initiated this action, alleging violations of constitutional rights, against Denver Public Schools (“DPS”), Tom Boasberg (“Boasberg”), and Terri Sahli (“Sahli”), (collectively, “Defendants”). This matter is before the Court on United States Magistrate Judge Michael E. Hegarty's Recommendation dated October 10, 2017 (ECF No. 42) (“Recommendation”), which recommends granting in part and denying in part Defendants' Motion to Dismiss (ECF No. 29) (“Motion to Dismiss”). The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed a timely Objection to the Recommendation (ECF No. 48) (“Objection”). For the reasons set forth below, Plaintiff's Objection is overruled and Judge Hegarty's Recommendation is adopted in its entirety.

         I. BACKGROUND

         In his First Amended Complaint (ECF No. 26) (“Complaint”), Plaintiff states that on or about August 3, 2015, Plaintiff responded to Defendants' job advertisement for two available Process Improvement Engineer (“PIE”) positions. (ECF No. 26 ¶ 22.) Plaintiff registered on the DPS website to submit his resume and cover letter, and to answer an online application form. (Id.) The online form asked applicants about their bilingual skills and included a pull-down menu which listed Arabic, Somali, Amharic, and Swahili for applicants to choose from. (Id.) The application also stated, “if your language was not listed above . . . please indicate it here.” (Id.) In response to this last question, Plaintiff entered “Farsi/Persian.” (Id.) Plaintiff claims this identified him as Iranian. (Id.) Plaintiff was called back for a phone interview on August 31, 2015, and then for an in person panel interview on September 10, 2015. (Id. ¶¶ 23-24.)

         On September 23, 2015, DPS e-mailed Plaintiff to say it had decided to hire other candidates for the two positions. (Id. ¶ 25.) In its Position Statement filed with the U.S. Equal Employment Opportunity Commission (“EEOC”), DPS explains that it “did not hire [Plaintiff], as he failed to exhibit strong teamwork skills.” The Statement goes on to explain, “a key part of the interview is testing the candidate's ability to lead a team by having him/her facilitate a group activity. Each candidate had to facilitate a discussion on the topic of ‘things to do in Denver.' [Plaintiff] did poorly during this part of the interview. Instead of facilitating a group discussion, he dictated it. He was unable to elicit comments from everyone in the group. He appeared to lecture the team, instead of drawing them together cohesively.” (Id. ¶ 35 (citation omitted).)

         “Plaintiff considers all such allegations 100% false.” (Id. ¶ 26.) Instead, Plaintiff claims that he was not hired because his status as “bilingual in Persian/Farsi identified him as [an] Iranian national [], [which in turn, ] subject[ed] him to extreme vetting by Defendants and [their] refusal to hire, ” despite Plaintiff having “twice the experience, and highest phone and in-person interview ratings. Defendant hired lowest rated candidates.” (Id. ¶ 32 (internal citation omitted).) Plaintiff claims that Defendants “planted bilingual questioning into DPS online job application [because] bilingual questioning reveal[s] (1) national origin, (2) religion and (3) ethnic background of job applicants of Amharic, Ethiopian, Somalian, Swahili, Arabic, Farsi/Persian languages, for extreme vetting.” (Id. ¶ 33 (internal emphasis omitted).)

         Plaintiff alleges six causes of action arising from these facts against DPS and Sahli and Boasberg, in their official and individual capacities: (1) Fourteenth Amendment Due Process violations resulting from Defendants' “covert systematic identification of national origin, ethnic/racial and religion, under pretext of job applicants ‘bilingual' questioning for extreme vetting” (id. at 9) (“First Claim"); (2) Fourteenth Amendment Equal Protection claims caused by Defendants' “intentional bilingual questioning, segregation and classification for extreme vetting” (id. at 14) (“Second Claim"); (3) Fourteenth Amendment Due Process violations stemming from “Defendants['] false statement with altered documents to EEOC against Plaintiff” (id. at 16) (“Third Claim”); (4) Fourteenth Amendment Due Process violation due to Defendants' “unreasonable and warrantless search by Plaintiff's extreme vetting” (id. at 17) (“Fourth Claim"); (5) First Amendment Establishment Clause violations (id. at 19) (“Fifth Claim"); and (6) “Discrimination, refusal to hire Plaintiff with respect to national origin” (id. at 21) (“Title VII claim”).


         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it “enables the district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” Id. In conducting its review, “[t]he district court judge may accept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions.” Id.

         A motion under Rule 12(b)(1) is a request upon the court to dismiss a claim for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of establishing that the court has jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Dismissal of a complaint under Rule 12(b)(1) is proper when the Court lacks subject matter jurisdiction over a claim for relief. See SBM Site Services, LLC v. Garrett, 2012 WL 628619, *1 (D. Colo. Feb. 27, 2012).

         When a court's subject matter jurisdiction is challenged, the court may review materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss into a motion for summary judgment. Davis ex rel. Davis v. U.S., 342 F.3d 1282, 1296 (10th Cir. 2003) (stating that “when a party challenges the allegations supporting subject-matter jurisdiction, the ‘court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts'” (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)); Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000); Holt, 46 F.3d at 1003.

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'” Id. (quoting Twombly, 550 U.S. at 556).

         Further, the Court is mindful of Plaintiff's pro se status, and accordingly reads his pleadings and filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiff, who still must comply with the fundamental requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of Topeka, Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).

         III. ANALYSIS

         In their Motion to Dismiss, Defendants raise four main contentions.

         First, they argue that Plaintiff's §1983 claims (First through Fifth Claims above) must be dismissed. According to Defendant, Plaintiff has not alleged facts establishing District liability, because a “local government unit cannot be held liable for the actions of its employees under a theory of respondeat superior.” (ECF No. 29 at 4.) Additionally, Plaintiff's “§ 1983 claims against Boasberg and Sahli should be dismissed under the doctrine of qualified immunity.” (Id. at 7.) Defendants argue that Boasberg and Sahli are entitled to qualified immunity because Plaintiff “has no property interest in the PIE position that could support a clearly established deprivation of due process” (id. at 8), “classification based on language does not amount to a clearly established violation of the Equal Protection Clause” (id. at 9), and Plaintiff's allegations also fail to “demonstrate a clearly established violation of the First Amendment” (id. at 10).

         Second, Defendants argue that Plaintiff's Title VII Claim “must be dismissed because [Plaintiff] fails to allege a cognizable or plausible Title VII claim of national origin discrimination.” Defendants point out that Plaintiff identified himself as bilingual in Farsi/Persian before the district selected him for multiple interviews-“[i]f the District intended to disqualify him because of his national origin, why would it wait until after it had gone to the trouble of advancing his candidacy through several rounds of interviews?” (Id. at 13.)

         Third, and finally, Defendants argue that Plaintiff “failed to exhaust any claim of religious discrimination.” (Id. at 14.) According to Defendants, in his “Charge of Discrimination with the EEOC, [Plaintiff] checked the boxes for national origin and age discrimination, but did not check the box for religious discrimination.” (Id. at 14.)

         After considering the parties' briefs, Judge Hegarty recommended the dismissal of Plaintiff's First, Second, Third, Fourth, and Fifth Claims, and dismissing Boasberg and Sahli from the case. (ECF No. 42 at 22.) However, Judge Hegarty also recommended denying Defendants' Motion ...

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