Frank v. City of Fort Collins

          ORDER ON MOTION TO DISMISS

          R. BROOKE JACKSON UNITED STATES DISTRICT JUDGE

         This matter is before the Court on two motions to dismiss. Defendant Jerome Schiager, the former Deputy Chief of Police of the Fort Collins Police Service (“FCPS”) moves to dismiss claim eight pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 20. Defendants City of Fort Collins (“the City”) and Terence Jones move to partially dismiss the complaint under Fed.R.Civ.P. 12(b)(6) and 12(b)(1). ECF No. 22. For the reasons explained below, Mr. Schiager's motion is GRANTED IN PART and DENIED IN PART and the City and Mr. Jones's motion is GRANTED.

         I. BACKGROUND

         The following facts are from the Complaint, ECF No. 2, and assumed true for purposes of the present motions. FCPS hired Ms. Frank in June 1999 as a Crime Analyst responsible for researching and interpreting information on crime-related issues to FCPS and other agencies within Fort Collins. ECF No. 2 at ¶¶30, 34. During her tenure, Ms. Frank met or exceeded the expectations of her position and received numerous positive performance reviews. Id. at ¶37. Ms. Frank is regarded as an expert in her field - her work has been featured in high profile trials, and she has lectured at various educational institutions. Id. at ¶¶39-40.

         As Ms. Frank's criminal analyst skill increased, she assumed additional responsibilities at FCPS. Id. at ¶49. As a result, and with the support of her then-supervisor, Ms. Frank began the process of reclassifying her position from crime analyst to “senior management analyst.” Id. at ¶52. Reclassification is necessary under the City's policies when the responsibilities of one's position substantively change. Id. at ¶¶52-53. Although this supervisor was unable to complete the reclassification process with Ms. Frank, he encouraged her to continue reclassification with her next supervisor. Id. at ¶55.

         Prior to becoming Ms. Frank's supervisor, Mr. Schiager and Ms. Frank had a contentious relationship. Ms. Frank believes that he marginalized her work efforts and treated her disrespectfully. Id. at ¶59. Specifically, in 2011 Mr. Schiager attempted to take credit for Ms. Frank's monthly management report, and when Ms. Frank refused to let him do so, Mr. Schiager began treating her “with disdain.” Id. at ¶¶60-62. Mr. Schiager also directed Ms. Frank to perform tasks that compromised her professional integrity, including asking her to research police calls from a private residence that Darin Atteberry, the Fort Collins City Manager, was interested in purchasing. Id. at ¶63. Ms. Frank did not have the authority to release this information because the property was outside of the department's jurisdiction. Id. Additionally, at a department training, Mr. Schiager filed a complaint with Ms. Frank's supervisor after she failed to invite another female attendee to lunch, accusing her of engaging in “‘Jr. high behavior.” Id. at ¶65. Apparently, there were several male attendees at the training that could have, but did not, invite the other female attendee to lunch, but Mr. Schiager did not file complaints with any of their supervisors. Id. at ¶66.

         Mr. Schiager also took away professional responsibilities involving a staffing, workload and redistricting study from Ms. Frank and assigned that project to “one of his male friends who had no previous experience.” Id. at ¶67. Subsequently, when Ms. Frank vocalized objections, Mr. Schiager accused her of showing a “lack of support” for the workplace study. Id. at ¶¶70- 71. In response, Ms. Frank formally complained to then Chief of Police John Hutto, who issued Mr. Schiager a “letter of reprimand” in May 2014 for his accusations against Ms. Frank. Id. at ¶¶73-74.

         In November 2015 Mr. Schiager was appointed Ms. Frank's direct supervisor. Id. at ¶57. Following Mr. Schiager's appointment as her supervisor, Ms. Frank formally complained to Mr. Hutto about Mr. Schiager's “demeaning” treatment of her and voiced concerns that he was retaliating against her because of the letter of reprimand he received from Mr. Hutto. Id. at ¶76. In this complaint Ms. Frank asserted that Mr. Schiager was removing her job responsibilities and reassigning them to a male employee, and that his treatment of her caused the workplace to be “uncomfortable, hostile, and intimidating.” Id. at ¶¶77, 80. She also voiced concerns that Mr. Schiager would oppose the reclassification process underway for her position. Id. at ¶78. Subsequently, Mr. Schiager told human resources that Ms. Frank's job description was adequate for her position, and that she lacked the competency to satisfy her current job description, effectively halting her reclassification efforts. Id. at ¶81.

         In May 2016 Mr. Schiager issued Ms. Frank her performance review for the first quarter of 2016. In it he indicated that Ms. Frank “had room for improvement'” and that her work was of “very poor quality” and “did not represent good analysis work.” Id. at ¶¶82-83. Mr. Schiager again stated that Ms. Frank's job title and description would not change. Id. at ¶84. Ms. Frank felt these comments were unfounded and retaliatory because she had been on track with her previous supervisor to reclassify her job, and she had the support of her previous Assistant Chief in doing so. Id. at ¶¶85-86.

         In June 2016 Mr. Schiager hired Erik Martin, a male, as a Financial Analyst for FCPS. Id. at ¶88. Mr. Martin and Ms. Frank were the only two analysts supervised by Mr. Schiager, were equally positioned on the organizational chart, performed substantially similar types of analytical work, and were subject to the same performance standards.” Id. at ¶¶90-92. At the time Mr. Martin joined FCPS Ms. Frank had been an employee for 17 years. Id. at ¶93. However, Mr. Martin's starting salary was approximately $1, 500 more than Ms. Frank's salary at the time he was hired. Id. at ¶¶94-95.

         On August 4, 2016 Mr. Hutto sent a departmental email addressing FCPS employees' concerns about workplace discrimination and expressing his commitment to take such concerns seriously. Id. at ¶97. In response, Ms. Frank sent another complaint about Mr. Schiager's conduct to Mr. Hutto; this complaint subsequently became part of the department's newly initiated investigation into workplace discrimination. Id. at ¶¶105-06. During this investigation, Ms. Frank received another negative performance review from Mr. Schiager and was excluded from workplace meetings and events by both Mr. Schiager and Mr. Hutto. Id. at ¶¶107, 113. On November 21, 2016 human resources representative Lori Greening sent Ms. Frank a memorandum indicating that she had concluded the investigation against Mr. Schiager and determined that Ms. Frank was not retaliated against based on a protected class or for any other improper reasons. Id. at ¶132. The next day Mr. Schiager placed Ms. Frank on a 90-day performance improvement plan (“PIP”) because of her “‘consistent pattern of errors in reporting data and a lack of analysis.'” Id. at ¶¶123-24. The PIP imposed an error-free standard on Ms. Frank and had the potential to render her ineligible for certain pay increases. Id. at ¶¶120, 125. This error-free standard was not imposed on any male employee directly supervised by Mr. Schiager, and errors of similar magnitude made by these employees, including Mr. Martin, went undisciplined. Id. at ¶¶125, 130, 136.

         Ms. Frank then sent another complaint about Mr. Schiager through her then-attorney on November 30, 2016. Id. at ¶133. In it, she referred to her negative performance reviews and her placement on the PIP. Id. On December 22, 2016 Mr. Schiager and Ms. Frank had a conversation in which he told her that although others had made errors, he had not lost confidence in their performance. Id. at ¶135. At this time Ms. Frank had an error rate of less than one-one thousandth of a percent. Id.

         On January 1, 2017 annual pay raises were issued to FCPS employees, including Mr. Martin. ¶¶ 142, 144. However, Ms. Frank did not receive a raise. Id. at ¶¶143. She was informed by Mr. Schiager on January 6, 2017 that her raise was contingent on resolving the PIP on its end date of February 15, 2017. Id. at ¶139. Beginning in January 12, 2017 Mr. Schiager began convening staff meetings that excluded only Ms. Frank, although she had been a part of such meetings in the past. Id. at ¶¶140, 148, 149. On January 17, 2017 Ms. Frank learned that there would be an administrative investigation into her allegations that Mr. Schiager was engaging in “harassment, targeting and retaliation.” Id. at ¶147. On February 7, 2017, Mr. Schiager was placed on administrative leave, and Greg Yeager became Ms. Frank's temporary supervisor. Id. at ¶150.

         As of February 15, 2017 Ms. Frank had completed all the requirements identified in the PIP. Id. at ¶154. Mr. Yeager gave her a positive first quarter performance review in 2017. He indicated that Deputy Chiefs Haywoood and Trobley had reported receiving timely and accurate reports from Ms. Frank when requested, that she was “outperforming, ” that she “positively helped with several projects and teams in need, ” and that he had received feedback from a manager complimenting Ms. Frank's work. In July 2017 Jerry Kinsman gave her a second quarter performance review that rated her as outperforming or on track in all areas, stating that she “is often looked to for expert advice, strategic work and ongoing project work within the scope of her role as a crime analyst.” Id. at ¶167.

         In May 2017 Terry Jones became the interim police chief when Mr. Hutto retired. He sent Ms. Frank a memo on July 27, 2017 indicating that he found Ms. Frank's complaints against Mr. Schiager to be unfounded. Id. at ¶168. Mr. Schiager was demoted the same day. Ms. Frank believes this demotion was related to his adverse treatment of her and other department employees, although Mr. Schiager sent a departmentwide email expressing that his downgrade in rank was not because of the investigation against him. Id. at ¶171, 172-74. One other employee expressed concerns about Mr. Schiager's “unethical behavior” related to his disparate treatment of women. Id. at ¶¶ 177-79. A different female employee made complaints related to gender-motivated disparate treatment inside the department and ultimately resigned her position because of this treatment. Id. at ¶¶193-94. In this time, Mr. Martin continued to be assigned responsibilities that previously belonged to Ms. Frank, and was approved for leadership development training although Ms. Frank's requests were denied. Id. at ¶¶175, 181.

         In early 2018 the City conducted a “Job Architecture” to categorize city jobs based on the knowledge, skills and experience required to perform each to ensure that similarly situated jobs were leveled in the same way. Id. at ¶196. Mr. Jones was the final decisionmaker on how positions were categorized within FCPS. Id. at ¶200. Ms. Frank's position as a crime analyst was classified as an “administrative” role while Mr. Martin's role was classified as “professional.” The administrative category has a lower pay scale than the professional category. Id. at 204-05. Ms. Frank believed that she should have been placed in the “professional” category, which was paid at a “P3” or “P4” salary range for many reasons. Id. at ¶¶214-16. The definition of the “professional” category included “developing solutions requiring analysis and research. Responsible for critical work and/or complex projects within a technical context.” Id. at ¶207. Ms. Frank believes this definition described her work as a crime analyst. Id. at ¶208. Moreover, the sample job titles given for the professional category included “analyst, ” and of all the positions in the city with the title of “analyst, ” crime analyst was the only position not placed in the professional category. Id. at ¶¶209-10. The role of crime analyst requires a college degree and analytical skill although jobs in the “administrative” category require only a high school diploma. Id. at ¶¶212, 220. There are only two crime analysts employed by the City - both were categorized as “administrative, ” and both are women. Id. at ¶220. The only positions in the FCPS that were placed into the “professional” category are held by men. Id. at ¶224.

         On December 13, 2017 Ms. Frank filed a Charge of Discrimination with the Colorado Civil Rights Division and the EEOC complaining of gender discrimination and retaliation for engaging in protected activity. Id. at ¶182. On April 6, 2018, after learning that her position was not designated as “professional, ” Ms. Frank amended her charge to include this event.

         Ms. Frank filed her Complaint in this Court on December 14, 2018. ECF No. 2. She brought a total of eight claims. The first seven claims are against the City: (1) Title VII gender discrimination (2) Colorado Anti-Discrimination Act gender discrimination (3) Title VII retaliation (4) Colorado Anti-Discrimination Act retaliation (5) Age Discrimination in Employment Act (6) Colorado Anti-Discrimination Act age discrimination, and (7) Equal Pay Act. The eighth cause of action is a Fourteenth Amendment Equal Protection Clause claim brought under 42 U.S.C. §1983 against Mr. Schiager and Mr. Jones in their individual capacities. Mr. Schiager moved to dismiss the only claim against him. ECF No. 20. Ms. Frank filed a response, ECF No. 23, and Mr. Schiager a reply, ECF No. 26. The City and Mr. Jones moved to dismiss claims five, six, and eight, ECF No. 23, Ms. Frank responded, ECF No. 24, and the two defendants replied, ECF No. 25. Both motions have been fully briefed and are now ripe for review.

         II. STANDARD OF REVIEW

         To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is one that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts must accept well-pled allegations as true, purely conclusory statements are not entitled to this presumption. Id. at 678, 681. Therefore, so long as the plaintiff pleads sufficient factual allegations such that the right to relief crosses “the line from conceivable to plausible, ” she has met the threshold pleading standard. Twombly, 550 U.S. at 556, 570.

         III. ANALYSIS

         Mr. Schiager raises three arguments for dismissal of plaintiff's § 1983 claim under Rule 12(b)(6): (1) plaintiff's claim is barred by the statute of limitations; (2) plaintiff is effectively pursuing an unactionable “class-of-one” equal protection claim; and (3) he is shielded from liability by qualified immunity. Fort Collins and Mr. Jones argue that (1) plaintiff's §1983 claim against Fort Collins is time-barred (2) plaintiff's §1983 equal protection claim against Mr. Jones is effectively an unactionable “class-of-one” equal protection claim; (3) plaintiff fails to state an equal protection claim; (4) plaintiff fails to state a claim ...