Moudden v. The University of Colorado Boulder

          REPORT AND RECOMMENDATION RE: DEFENDANTS' MOTION TO DISMISS [ECF. #19] AND MOTION FOR PARTIAL SUMMARY JUDGMENT [ECF. #32]

          S. KATO CREWS UNITED STATES MAGISTRATE JUDGE.

         This Report and Recommendation (“Recommendation”) addresses two separate motions filed by Defendants: (1) a Motion to Dismiss Plaintiff's Amended Complaint and Jury Demand under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (“Motion to Dismiss”) [ECF. #19]; and, (2) an Early Motion for Partial Summary Judgment under Fed.R.Civ.P. 56 (“MSJ”) [ECF. #32]. The Court has reviewed both motions, Plaintiff's responses opposing the motions [ECF. #22 (Motion to Dismiss) and #33 (MSJ)], Defendants' replies [ECF. #29 (Motion to Dismiss) and #35 (MSJ)], and the Amended Complaint [ECF. #13]. The Court has also reviewed applicable case law and has determined that oral argument will not materially assist this Recommendation. For the following reasons, the Court RECOMMENDS GRANTING both motions.

         I. FACTUAL BACKGROUND

         A. Facts Re: Motion to Dismiss^[1]

         Plaintiff Yousef Moudden (“Moudden”) is a former Research Associate and Lecturer in the Departments of Aerospace Engineering Sciences (AES) and Atmospheric and Oceanic Sciences (ATOC) at Defendant University of Colorado at Boulder (''University"). [ECF. #13 at ¶1.] He identifies his race as Black / African American, and his national origin as Moroccan.^[2] He worked at the University from June or July 2007 to the end of 2016. [Id. at ¶¶1, 13, 104.]

         At some point while working in AES, Moudden became interested in teaching in ATOC. [Id. at ¶¶15-16.] At all relevant times, Defendant John Cassano (“Cassano”) was responsible for selecting candidates for teaching positions in ATOC, subject to Defendant Cora Randall (chair of the department) making the final hiring decisions. [Id. at ¶¶17-18.] Cassano and Randall first became aware of Moudden's desire to teach in ATOC on June 11, 2013 in relation to a teaching vacancy. [Id. at ¶19.] They declined to consider Moudden for the position. [Id. at ¶20.]

         Cassano and Randall were again made aware of Moudden's interest in teaching in ATOC on April 26, 2014, when he applied for a position to teach ATOC 1050 and 1060. [Id. at ¶21.] Rather than hire Moudden, the Amended Complaint alleges the University hired a “less qualified candidate” with “inferior teaching experience and inferior research experience.” [Id. at ¶22.]

         On August 6, 2014, Moudden contacted Cassano while posing as a person named “Jason McLeif”-a fictional individual created by Moudden. [Id. at ¶23.] Moudden, posing as “McLeif, ” told Cassano that “McLeif” was a post-doctoral student at Colorado State University who was inquiring about teaching vacancies in ATOC. [Id.] At that time, Cassano told “McLeif” there were no vacancies, but Cassano would keep “McLeif” informed of future opportunities. [Id.] Thereafter, Cassano informed “McLeif” of “every teaching vacancy that ATOC had and invited him to apply at every available occasion.” [Id. at ¶24.] By contrast, Cassano never informed Moudden of any teaching vacancy, and never invited him to apply. [Id.]

         Moudden next applied for an open ATOC position on May 4, 2015. [Id. at ¶29-31.] The University did not select Moudden and instead “hired a less qualified candidate.” [Id. at ¶¶30-33.] On October 21, 2015, Cassano told “McLeif and other candidates” of a vacant position for ATOC 1060. [Id. at ¶34.] Moudden applied for this position, but the University did not hire him and instead “hired a less qualified candidate.” [Id. at ¶¶34-40.] On May 17, 2016, Cassano again told “McLeif and other candidates” of a vacant teaching position in ATOC 1050 and 1060. [Id. at ¶41.] Again, the University did not select Moudden and instead hired someone else. [Id. at ¶¶41-46.]

         At various times, Moudden told his supervisor, Defendant Jeffrey Forbes (“Forbes”), that the University was not considering Moudden for teaching positions in ATOC while “McLeif” consistently received invitations to apply. [Id. at ¶59.] The Amended Complaint alleges that “[e]very time Plaintiff received preferential treatment as Jason McLeif and was excluded from teaching opportunities, he expressed his suspicion of racial discrimination, frustration and extreme dissatisfaction to his direct supervisor, [Forbes]. [Forbes] responses were extremely derogatory. At different times, his responses were: ‘you need to stop whining', ‘you are a menace', ‘if war breaks I think you'll be fighting for the other side' among others.” [Id. at ¶60.] Moudden alleges these “degrading and veiled racist comments continued throughout the period” that Moudden tried to obtain a teaching position in ATOC. [Id. at ¶61.]

         The last time Moudden complained to Forbes that Cassano gave “McLeif” preferential treatment over Moudden was in May 2016. [Id. at ¶62.] At that time, Forbes told Moudden, “I think [Cassano] will be voting for Trump!” [Id. at ¶62.] Instead of addressing Moudden's complaints through the University's discrimination and harassment policies, Forbes instead told people in ATOC that “McLeif” and Moudden were the same individual. [Id. at ¶63-69.] Thereafter, “[h]aving been tipped-off about the real identify of Jason McLeif, [Cassano] and [Randall] decide [sic] on a devious plot to correct the situation to their advantage.” [Id. at ¶70.] They immediately hired Moudden to teach ATOC 1050 for the Fall 2016 semester. [Id. at ¶¶70-71.]

         After he started teaching there in August 2016, Moudden alleges he was subjected to a hostile work environment, and Randall and Defendant Melissa Nigro (“Nigro”) “engaged in a proactive campaign to undermine” his activities as a lecturer. [Id. at ¶73.] Within the first 10 days of the semester, Nigro attempted to recruit the teaching assistant assigned to Moudden “to be an informant” by showing up unannounced to the teaching assistant's office and asking him to provide information about Moudden's class. [Id. at ¶74.] At this point, “during the first two weeks of the semester [Moudden] realized that Defendants conspired against him because of his race and that all his previous applications were indeed rejected because of his race/national origin.” [Id. at ¶75.]

         In August and October 2016, two students (out of 320) expressed dissatisfaction with Moudden's class, according to Defendants. [Id. at ¶¶77, 79, 82-84.] Relying on these two complaints, on October 11, 2016, Cassano decided he would “never hire [Moudden] again.” [Id. at ¶¶85-86.] But Moudden was not informed of the decision at the time, and he ultimately completed the semester. [Id. at ¶¶87-91.]

         The ATOC 1050 class had another opening for Spring 2017. [Id. at ¶95.] The University invited a specific candidate to apply and subsequently hired that individual. [Id. at ¶¶95-97.] This individual was less qualified than Moudden. [Id. at ¶101.] Moudden alleges that Cassano decided not to hire Moudden for this position on or before October 11, 2016. [Id. at ¶¶85, 102-03.] He further alleges he was not considered or hired because of “his racial (sic) and national origin and as retaliation for his repeated complaints about intentional unlawful discrimination against him.” [Id. at ¶103.]

         Moudden “permanently lost” his employment with the University on December 31, 2016. [Id. at ¶104.] He alleges he “was terminated from his employment at [the University] because of his race and national origin and as retaliation to his opposition to discriminating behavior towards him.” [Id. at ¶105.] He further alleges that Defendants offered nine different and inconsistent reasons for excluding or not hiring him in ATOC, and that these reasons are a pretext “for the adverse treatment and hostile work environment” he experienced. [Id. at ¶119-22.]

         The Amended Complaint asserts four Claims for Relief:

1. First Claim for Relief: Race/National Origin Discrimination and Unlawful Retaliation in Violation of Title VII (against the University)

2. Second Claim for Relief: Discrimination and Retaliation in Violation of the Colorado Anti-Discrimination Act (against the University)

3. Third Claim for Relief: Denial of Equal Protection under 42 U.S.C. § 1983 (against the University, DiStefano, Forbes, and Nigro in their official capacities; and against Cassano and Randall in both their official and individual capacities)

4. Fourth Claim for Relief: Breach of Contract (against the University, DiStefano, Cassano, Randall, Forbes, and Nigro in their official capacities)

[See generally ECF. #13.] The Motion to Dismiss seeks dismissal of: (1) all official-capacity claims against Forbes, Cassano, Randall, and Nigro under Fed.R.Civ.P. 12(f); (2) the individual-capacity claims against Cassano and Randall based on qualified immunity; (3) the breach of contract and Colorado Anti-discrimination Act (CADA) claims under Fed.R.Civ.P. 12(b)(1); and (4) the Title VII, CADA, and § 1983 claims under Fed.R.Civ.P. 12(b)(6).

         B. Facts Re: MSJ^[3]

         In June 2007, the University hired Moudden as a Research Associate AES. [¶1 of ECF. #32 and #33.] On May 4, 2015, Moudden emailed Cassano to inquire about a lecturer position with ATOC. [¶7 of ECF. #32 and #33.] Later that day, Cassano told Moudden that he would “not be considering [Moudden] for th[e] position this year [because Cassano] already ha[d] a list of finalists [he was] considering.” [¶8 of ECF. #32 and #33.] On October 22, 2015, Moudden emailed Cassano asking whether ATOC had any “teaching vacancies” for the Spring 2016 semester. [¶9 of ECF. #32 and #33.] Cassano told Moudden that ATOC was planning to hire one lecturer and asked Moudden to send his “CV” if he was interested. [¶10 of ECF. #32 and #33.] On November 5, 2015, Cassano told Mouden he had “hired someone else, ” but was “happy to keep [Moudden] in mind for future lecturer positions.” [¶11 of ECF. #32 and #33.]

         On May 19, 2016, Moudden emailed Cassano to inquire about teaching opportunities for the Fall 2016 semester. [¶12 of ECF. #32 and #33.] On June 3, 2016, Cassano offered, and Moudden accepted, “the ATOC 1050 lecturer position for [F]all 2016.” [¶13 of ECF. #32 and #33.] On November 9, 2016, Moudden inquired about “any teaching vacancies in ATOC in the spring, summer or fall semesters” of 2017. [¶14 of ECF. #32 and #33.] Randall, the department chair, told Moudden that ATOC was “not looking for any lecturers” at that time. [¶15 of ECF. #32 and #33.]

         Moudden dual-filed a Charge of Discrimination (“Charge”) with the Colorado Civil Rights Division (and the Equal Employment Opportunity Commission (EEOC)) on October 12, 2017. [ECF. #32-3 at p.7.] In his Charge, he checked the boxes for “race” and “national origin” discrimination. [¶17 of ECF. #32 and #33.] He did not check the box for “retaliation.” [¶18 of ECF. #32 and #33.] His narrative statement in the Charge fully reads, “I have been repeatedly denied lecturer positions despite being qualified since April 2015 and most recently in October 2016. I believe I have been discriminated against because of my race (Black/African American) and national origin (Moroccan) in violation of Title VII of the Civil Rights Act of 1964, as amended.” [¶19 of ECF. #32 and #33; ECF. #32-3 at p.7.]

         In his rebuttal statement provided to the EEOC, Moudden stated, in relevant part: he “was hired this time to be subjected to a hostile work environment as a retaliation for my complaining to coworkers about what I believe is blatant unlawful discrimination;” “[a]fter I started teaching I quickly learned that I was only hired so that they can subject me to a hostile work environment and build a case for my inadequacy to teach;" and, “'[m]y appointment was to teach ATOC 1050 for the fall semester (August to December) of 2016. From the beginning of my teaching activities I was subjected to a hostile working environment and extreme scrutiny.” [¶¶5-7 of ECF. #33 and #35.]

         II. STANDARDS OF REVIEW

         A. Rule 12(b)(1)

         “Federal courts ‘have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party,' and thus a court may sua sponte raise the question of whether there is subject matter jurisdiction ‘at any stage in the litigation.'” 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)). Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (emphasis added).

         B. Rule 12(b)(6)

         In deciding a motion under Fed.R.Civ.P. 12(b)(6), the Court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The Court is not, however, “bound to accept as true a legal conclusion couched as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard requires more than the mere possibility that a defendant has acted unlawfully. Id. Facts that are “merely consistent” with a defendant's liability are insufficient. Id.

         The Court's ultimate duty is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). “Nevertheless, the standard remains a liberal one, and ‘a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely.'” Morgan v. Clements, No. 12-cv-00936-REB-KMT, 2013 WL 1130624, at *1 (D. Colo. Mar. 18, 2013) (quoting Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)).

         C. Summary Judgment

         The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is proper when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39 F.3d at 1134.

         A party who does not have the burden of proof at trial must show the absence of a genuine issue of fact. Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 514 U.S. 1004 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show by tendering depositions, affidavits, and other competent evidence that summary judgment is not proper. Id. at 1518. All evidence must be viewed in the light most favorable to the party opposing the motion. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir. 1999), cert. denied, 528 U.S. 933 (1999); Nutting v. RAM Southwest, Inc., 106 F.Supp.2d 1121, 1123 (D. Colo. 2000).

         D. Filings by Pro Se Parties

         The Court acknowledges that Moudden is not an attorney. Consequently, his filings and related submissions are construed liberally and held to a less stringent standard than formal filings drafted by a lawyer. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Despite the liberal construction afforded pro se pleadings, however, courts will not construct arguments or theories for a pro se party in the absence of any discussion of those issues. Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990).

         III. ANALYSIS

         A. THE ...