United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
Michael E. Hegarty United States Magistrate Judge.
Denver Public Schools (“DPS”) seeks to dismiss
Plaintiff Alireza Vazirabadi's claim for violation of the
Age Discrimination in Employment Act (“ADEA”).
Because Mr. Vazirabadi has made a prima facie showing of age
discrimination, I respectfully recommend that the Honorable
William J. Martinez deny the motion.
following are relevant factual allegations, which I take as
true for analysis under Fed.R.Civ.P. 12(b)(6) pursuant to
Ashcroft v. Iqbal, 556 U.S. 662, 678
Vazirabadi is a fifty-five-year-old, Iranian-American citizen
residing in Aurora, Colorado. Second Am. Compl. ¶ 1, ECF
No. 67. On August 3, 2015, when Mr. Vazirabadi was fifty-two
years old, id. ¶ 42, he applied for DPS'
process improvement engineer (“PIE”) position.
Id. ¶ 19. Mr. Vazirabadi had more than ten
years of direct experience. Id.
Vazirabadi had a phone interview with the DPS hiring manager,
who informed him that he was being considered for two
identical PIE positions. Id. ¶ 23. He then had
a panel interview with the DPS hiring manager and three
process improvement team members. Id. ¶ 24.
Finally, Mr. Vazirabadi met with DPS' director of
enterprise risk management and process improvement.
Id. ¶ 26.
September 23, 2015, DPS informed Mr. Vazirabadi that it had
chosen other candidates for the PIE vacancies. Id.
¶ 27. The applicants who received the job offers were a
man in his late twenties and a woman in her early thirties.
Id. ¶ 15. At the time of hiring, both
candidates had five years of experience. Second Am. Compl.
October 20, 2015, Mr. Vazirabadi filed a complaint with the
Equal Employment Opportunity Commission (“EEOC”).
Second Am. Compl. ¶ 9, ECF No. 67. On March 6, 2017, Mr.
Vazirabadi received a right to sue letter from the EEOC.
Second Am. Compl. Ex. 1, ECF No. 67. Proceeding pro se, Mr.
Vazirabadi filed the present case on May 15, 2017. Compl.,
ECF No. 1.
14, 2018, Mr. Vazirabadi filed a Second Amended Complaint,
which asserts Title VII and ADEA claims. Second Am. Compl.,
ECF No. 67. In his ADEA claim, Mr. Vazirabadi alleges that
DPS discriminated against him by hiring two applicants who
are under the age of forty and have less experience.
Id. ¶¶ 41-46. Mr. Vazirabadi further
asserts that DPS deliberately made a false statement to the
EEOC by claiming that one of the chosen candidates was over
the age of forty when she was actually in her early thirties.
Id. ¶ 44.
filed the present Partial Motion to Dismiss on May 29, 2018.
Partial Mot. to Dismiss, ECF No. 68. DPS argues that the ADEA
claim should be dismissed, because Mr. Vazirabadi fails to
plead facts establishing age as a “but-for” cause
of DPS' decision not to hire him. Id. at 4-6.
Mr. Vazirabadi responds by reiterating his allegation that
DPS deliberately made false statements to the EEOC. Resp. to
Partial Mot. to Dismiss ¶ 3, ECF No. 71. In its reply
brief, DPS asserts that Mr. Vazirabadi failed to refute and
thus concedes its but-for causation argument. Reply in Supp.
of Partial Mot. to Dismiss 1-3, ECF No. 73. DPS further
contends that its EEOC response has no bearing on Mr.
Vazirabadi's ADEA claim. Id. at 3-4.
5, 2018, Mr. Vazirabadi filed an opposed Motion for Leave to
File a Surreply, ECF No. 77. DPS responded on July 13, 2018.
ECF No. 80.