United States District Court, D. Colorado
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.)
I.
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