Vazirabadi v. Denver Public Schools

          ORDER ON PENDING RECOMMENDATIONS AND MOTIONS

          WILLIAM J. MARTÍNEZ JUDGE

         This matter is before the Court on two recommendations by United States Magistrate Judge S. Kato Crews. (ECF Nos. 125 & 135.) In the first recommendation, filed on March 6, 2019, Judge Crews recommended that this Court (1) deny Plaintiff Alireza Vazirabadi's (“Plaintiff” or “Vazirabadi”) Motion to Amend Second Amended Complaint (“November 30, 2018 Motion to Amend”; ECF No. 108); and (2) deny Plaintiff's Second Motion to Amend Second Amended Complaint (“February 8, 2019 Motion to Amend”; ECF No. 118) (collectively, “Motions to Amend”). (“March 6, 2019 Recommendation”; ECF No. 125.)

         In the second recommendation, filed on March 28, 2019, Judge Crews recommended that this Court (1) grant Defendant Denver Public Schools' (“DPS”) Motion for Summary Judgment (“Motion for Summary Judgment”; ECF No. 116); (2) dismiss with prejudice Plaintiff's Second Amended Complaint (“Second Amended Complaint”; ECF No. 67); (3) enter judgment in favor of DPS and against Plaintiff; (4) dismiss without prejudice the John and Jane Doe Corporations 1 through 10 (“Doe Corporations”); and (5) dismiss without prejudice the Other John Doe Entities 1 through 10 (“Doe Entities”). (“March 28, 2019 Recommendation”; ECF No. 135.)

         The March 6, 2019 Recommendation and March 28, 2019 Recommendation are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b). Plaintiff filed timely objections to the March 6, 2019 Recommendation (“March 12, 2019 Objection”; ECF No. 129) and the March 28, 2019 Recommendation (“April 11, 2019 Objection”; ECF No. 136).

         Also pending before the Court are Plaintiff's (1) objection to Judge Crews's denial of his motion to compel (“Objection to Denial of Motion to Compel”; ECF No. 107); and (2) motion seeking leave to file a surreply (“Motion for Leave to File Surreply”; ECF No. 113).

         For the reasons set forth below, the March 6, 2019 Recommendation is adopted in its entirety, Plaintiff's March 12, 2019 Objection is overruled, Plaintiff's November 30, 2018 Motion to Amend is denied, Plaintiff's February 8, 2019 Motion to Amend is denied, the March 28, 2019 Recommendation is adopted as modified, Plaintiff's April 11, 2019 Objection is overruled, DPS's Motion for Summary Judgment is granted, Plaintiff's Objection to Denial of Motion to Compel is overruled as moot, and Plaintiff's Motion for Leave to File Surreply is denied as moot.

         I. LEGAL STANDARD

         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. 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.” Fed.R.Civ.P. 72(b)(3). Here, Plaintiff filed a timely objection to the March 6, 2019 Recommendation and to the March 28, 2019 Recommendation. (See ECF Nos. 129 & 136.) Therefore, the Court reviews the issues before it de novo, except where otherwise noted.

         In considering the recommendations, the Court is also 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, 472 F.3d 1242, 1243 (10th Cir. 2007). The Court, however, cannot act as advocate for Plaintiff, who must still 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, 318 F.3d 1183, 1188 (10th Cir. 2003).

         II. BACKGROUND

         The following factual summary is primarily drawn from the various motions pending before the Court and documents submitted in support, as well as Plaintiff's Second Amended Complaint. These facts are undisputed unless attributed to a party.

         A. Introduction

         Plaintiff is a 55-year-old Iranian-American citizen residing in Aurora, Colorado. (ECF No. 67 at 1, ¶ 1.) In 2015, DPS was recruiting two Process Improvement Engineers (“PIE”) for its Risk Management Department. (ECF No. 116-1 at 1, ¶ 4.) On August 3, 2015, Plaintiff applied for one of the positions after seeing DPS's job posting on a job listing website (“Job Posting”; id. at 11-12). (ECF No. 67 at 4, ¶ 19; see also ECF No. 116-1 at 13-16.) Plaintiff was invited to several rounds of interviews, but DPS chose to hire other candidates. (ECF No. 116-1 at 1-3.) This lawsuit followed. (ECF No. 1.)

         B. PIE Position Requirements

         The Job Posting described “the purpose of the [PIE] position, expected outcomes and results, and overview of areas of accountability, ” as follows:

The Process Improvement Engineer (PIE) guides DPS departments in collaborative process improvement and re-engineering projects . . . . The PIE will lead or mentor process owners through transformational business process definition and re-engineering projects . . . .

In addition, the PIE will increase awareness of the value of business process improvement throughout DPS, will train and mentor DPS employees in the use of process improvement tools, and will share business process improvement best practices with other DPS initiatives.

(ECF No. 116-1 at 11.)

         In describing “specific knowledge and qualifications required for the job, ” the Job Posting listed in pertinent part the following requirements:

• Strong interpersonal and teamwork skills with the ability to negotiate and influence others.

• Excellent [ ]verbal communication and presentation skills.

• Able to work collaboratively with cross functional teams and with DPS employees at all levels of the organization from executive leadership to line staff.

(Id. at 12.)

         In detailing the “minimum education and experience required for the [PIE position]”, the Job Posting provided that the applicant must have:

• [A] Bachelor's degree in Industrial Engineering.

• At least 5 years of work experience in continuous improvement or a related field, with a focus on process design/re-engineering and Lean Six Sigma.

• At least 5 years of work experience in cross-functional project management.

(Id.)

         C. PIE Recruitment Process

         When there is a vacancy for a PIE position, the job is posted by DPS, and candidates submit an application and other materials, including resumes and cover letters, through DPS's online application system. (Id. at 2, ¶ 5; see also ECF No. 67 at 4, ¶ 19.)

         During the relevant time period, Karen Johnson served as DPS's Senior Manager of Process Improvement and the hiring manager for PIEs. (ECF No. 116-1 at 1, ¶¶ 2, 4.) Johnson's standard practice is to gather resumes and cover letters from the online applications and select candidates for phone interviews. (Id. at 2, ¶ 5.) After conducting phone interviews, Johnson chooses candidates to advance to the following in-person interviews: (1) one panel interview with Johnson and the PIEs on her team; and (2) one interview with DPS's Director of Risk Management, Terri Sahli, who was Johnson's supervisor at the time. (Id.)

         D. Plaintiff's Application for the PIE Position

         Twenty-six individuals, including Plaintiff, applied for one or both of the two vacant PIE positions using DPS's online application system. (Id. at 2, ¶ 5; see also ECF No. 117 at 27.) To apply, applicants had to complete a DPS online job application (“Job Application”; ECF No. 116-3). (ECF No. 116-1 at 2-3, ¶¶ 5, 13.) The Job Application asked applicants a set of 13 questions, such as:

• Are you eligible for employment in the United States?

• Are you presently employed? If so, where?

• Are you 18 years or older?

(See ECF No. 116-3.) In pertinent part, the Job Application asked applicants to indicate whether they were “bilingual, ” and if so, to identify the language. (Id. at 2.) In his Job Application, Plaintiff answered that he was bilingual in “Farsi/Persian.” (Id.) Plaintiff claims that this answer “identified his Iranian heritage/national origin.” (ECF No. 140 at 2, ¶ 3.) However, the Job Application did not ask for, and Plaintiff did not provide, his age or national origin. (See ECF No. 116-3.)

         After completing the Job Application, applicants were then asked to submit their cover letters and resumes to DPS's online application system. (ECF No. 116-1 at 2-3, ¶¶ 5, 13.) Plaintiff submitted both documents, but did not state his age, national origin, or language proficiency in either document. (Id. at 13-16.) Johnson gathered the applicants' resumes and cover letters, and selected nine candidates, including Plaintiff, for phone interviews. (Id. at 2, ¶¶ 5, 7.)

         E. Phone Interviews

         The phone interviews were conducted by Johnson and lasted from 45 to 60 minutes. (Id. at 32.) Johnson interviewed all nine candidates by phone between August 28 and September 2, 2015. (Id. at 27, 32.) During the phone interviews, Johnson asked each of the nine candidates the same set of questions, none of which concerned the candidate's age, national origin, or language proficiency. (See id. at 21-26.)

         Plaintiff's phone interview took place on August 31, 2015. (Id. at 27, 31.) During the interview, Johnson informed Plaintiff that there were two open PIE positions and that he would “be considered for both.” (ECF No. 136 at 12, ¶ 7.1.) Plaintiff took this comment as “positive feedback.” (Id.) In the interview, Plaintiff did not discuss his age, national origin, or language proficiency with Johnson. (ECF No. 116-1 at 3, ¶ 13; see also id. at 21-22; ECF No. 116-4 at 2; ECF No. 116-6 at 4, 10.)

         F. Panel Interviews

         After conducting the phone interviews, Johnson chose six candidates, including Plaintiff, for the in-person interviews. (ECF No. 116-1 at 2, ¶ 8.) The candidate pool narrowed to five after one applicant declined to interview. (Id.)

         The purpose of the panel interview was to test a candidate's facilitation skills and the essential functions of the PIE position, including: (1) the ability to achieve project results working closely and collaboratively with executive sponsors, process owners, and project teams; (2) strong interpersonal and teamwork skills with the ability to negotiate and influence others; and (3) the ability to work collaboratively with cross functional teams and with School District employees at all levels of the organization from executive leadership to line staff. (Id. at 2, ¶¶ 4, 8; see also id. at 11-12.) To test these skills, the panel asked each candidate “to facilitate a group discussion on the topic of ‘things to do for a team building event in Denver [the “Facilitation Question”].'” (Id. at 2, ¶ 8.; see also ECF No. 67 at 7, ¶ 24; ECF No. 117 at 25-26.)

         Plaintiff's panel interview took place on September 10, 2015. (ECF No. 67 at 7, ¶ 24; ECF No. 116-1 at 29.) Plaintiff's interviewers consisted of Johnson and the three incumbent PIEs-Andra Manczur, Katie Wolters, and Jeffrey Gwaltney. (ECF No. 116-1 at 2, ¶ 8.) According to Plaintiff, all of the panel members “had 2-page interview questionnaire[s], ” on which they “continuously made hand-written notes” for the duration of his panel interview. (ECF No. 117 at 13, ¶ 5; see also id. at 17-18.) In his panel interview, Plaintiff did not discuss his age or national origin. (ECF No. 116-1 at 3, ¶ 13; see also ECF No. 116-4 at 2; ECF No. 116-5 at 2, ¶ 7; ECF No. 116-6 at 7, 10.)

         In her affidavit, Johnson described Plaintiff's performance at his panel interview, particularly in regard to how Plaintiff answered the Facilitation Question, as follows:

[Mr. Vazirabadi] performed poorly. Instead of facilitating a group discussion, he dictated it. He was unable to make all the Process Improvement team members feel he was listening to their ideas, and rather than engaging us and drawing out ideas about potential team building events in Denver, he told us what we should do. Mr. Vazirabadi also focused mostly on me instead of giving everyone on the team equal attention. Although Mr. Vazirabadi had many years of engineering experience, it was clear after the panel interview that he was unlikely to meet the School District's needs and be successful in the PIE position.

(ECF No. 116-1 at 2-3, ¶ 9.)

         Gwaltney's account of how Plaintiff performed in his panel interview is similar to Johnson's description:

Mr. Vazirabadi did not do well in his interview. He dominated the discussion rather than facilitate it, telling [the interviewers] what we should do in Denver rather than elicit our own ideas. It was more like a lecture than a shared discussion, with little collaboration. Mr. Vazirabadi also seemed to focus most of his attention on Ms. Johnson, neglecting me and my colleagues Andra Manczur and Katie Wolters. As someone who was working as a PIE, it was apparent to me that Mr. Vazirabadi did not show the facilitation skills needed for the job. To be successful, a PIE must have strong interpersonal skills, be an excellent listener, and have the ability to work collaboratively with employees at every level of the School District.

(ECF No. 116-5 at 1, ¶ 4.)

         Plaintiff disputes these accounts, asserting that Johnson and Gwaltney's “characterization of [his] facilitation performance is categorically false, untrue, defamatory and extremely hurtful.” (ECF No. 117 at 13-14, ¶ 5.) In particular, Plaintiff alleges that he “had excellent interactions and chemistry with all the panel members, for the entire 60 minute interview.” (Id. at 13, ¶ 5.)

         From his fillings, it is evident that one event in particular is of great importance to Plaintiff. (See, e.g., ECF No. 1 at 4-5, ¶¶ 23, 25; ECF No. 67 at 7-8, ¶¶ 24, 29; ECF No. 117 at 5, 13, ¶¶ 5, 9; ECF No. 118 at 86-87, 117-118; ECF No. 129 at 5, ¶ 10; ECF No. 136 at 14, ¶ 7.7; ECF No. 140 at 2, ¶ 5.) This “memorable and validating moment” occurred right before Plaintiff left the panel interview room, when Gwaltney asked Plaintiff: “do you like to be called Alireza or Ali?” (ECF No. 67 at 7, ¶ 24.) Noticing that the other panel members were awaiting his response, Plaintiff responded “Ali.” (Id.) Plaintiff asserts that Gwaltney's question “proves the interview panel was looking forward to [Plaintiff's] immediate hiring” and that a “picture fails to capture” these “last few exchanged words saying over 1000 words.” (Id.; ECF No. 136 at 18.)

         In his response to the Motion for Summary Judgment, Plaintiff attached as an exhibit a “Team Facilitation Narrative, ” wherein Plaintiff describes in detail his version of how his panel interview transpired when he was asked the Facilitation Question. (ECF No. 117 at 25-26.) From his narrative, Plaintiff appears to be arguing that, contrary to Johnson and Gwaltney's assertions, his interview went well as the panel members showed “sincere excitement, ” laughed at his “funny joke[s], ” and smiled approvingly. (Id. (emphasis omitted).) In addition, Plaintiff appears to describe a more collaborative environment, one where he did not dominate the discussion. (Id.)

         In Johnson and Gwaltney's affidavits, they discuss how two of the candidates, Thach Nguyen and Ashley Schroeder (who were ultimately hired), significantly outperformed Plaintiff in their panel interviews. (See ECF No. 116-1 at 3, ¶ 10; ECF No. 116-5 at 2, ¶ 5.) In particular, they discuss how Nguyen and Schroeder “demonstrated strong collaborative skills, ” superior listening skills, and were able to successfully facilitate a group discussion in a collaborative manner that involved the entire group. (ECF No. 116-1 at 3, ¶ 10; ECF No. 116-5 at 2, ¶ 5.)

         G. Plaintiff's Interview with Sahli

          Plaintiff and each of the other candidates who participated in the panel interviews also interviewed with Sahli. (ECF No. 116-1 at 2, ¶ 5; ECF No. 116-2 at 2, ¶¶ 7, 9.) Sahli's “only role in the hiring process was to conduct a short one-on-one interview with each finalist Ms. Johnson identified and then provide feedback to Ms. Johnson, ” but ultimately the “hiring decisions were made by Ms. Johnson.” (ECF No. 116-2 at 2, ¶ 7.)

         Plaintiff's one-on-one interview with Sahli took place on September 15, 2015. (ECF No. 116-1 at 29.) The following is Sahli's account of the interview:

Mr. Vazirabadi came across as very sale-and-entrepreneurial-oriented. PIEs do not work in isolation, and their role is not to solicit business within the School District. My impression was that Mr. Vazirabadi would not be able to work collaboratively and consultatively in a team role. I also did not feel that Mr. Vazirabadi would be able to work within the standardized service model Ms. Johnson implements.

(ECF No. 116-2 at 2, ¶ 9.) During the interview, Sahli did not ask and Plaintiff did not disclose his age, national origin, or proficiency in “Farsi/Persian.” (Id. at 2, ¶ 10; see also ECF No. 116-4 at 2; ECF No. 116-6 at 7, 10.)

         H. Resumes of the Relevant Applicants

         The resumes of the applicants also played an important role in Johnson's hiring decision. (See ECF No. 116 at 5, 15; ECF No. 116-1 at 2-3, ¶¶ 7, 12.) In regard to Plaintiff, Johnson noted that he has a Bachelor of Science in Industrial Engineering from the University of Wisconsin-Stout, and that he had over 20 years of engineering experience in California and Colorado. (ECF No. 116-1 at 2, ¶ 7; see also id. at 15-16.) However, Johnson also noted that since October 2013, Plaintiff's only occupation had been as an UberX Driver and that he had a “previous four-year gap in professional employment while he served as a caregiver.” (Id. at 2, ¶ 7; see also id. at 15.) Plaintiff was 52 years-old when he interviewed with DPS for the PIE positions. (ECF No. 140 at 3-4, ¶ 11.)

         Nguyen has a Bachelor of Science in Materials Science and Engineering from Cornell University's College of Engineering. (ECF No. 116-1 at 18; see also ECF No. 116 at 5, ¶ 14.) At the time of his interviews, Nguyen had over six years of relevant engineering experience with no gaps in his professional employment. (ECF No. 116-1 at 18; see also ECF No. 116 at 5, ¶ 14.) Nguyen was 28 years-old when DPS offered him the PIE position. (ECF No. 67 at 3, ¶ 17.)

         Schroeder has a Bachelor in Science in Industrial Engineering from the University of Michigan's College of Engineering. (ECF No. 116-1 at 19-20; see also ECF No. 116 at 5, ¶ 14.) At the time of her interviews, Schroeder had over five years of relevant engineering experience with no gaps in her professional employment. (ECF No. 116-1 at 19-20; see also ECF No. 116 at 5, ¶ 14.) Schroeder was “in her thirties” when DPS offered her the PIE position. (ECF No. 67 at 3, ¶ 17.)

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