United States District Court, D. Colorado
ORDER ON MOTION TO DISMISS
BROOKE JACKSON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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
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
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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.
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 ...