United States District Court, D. Colorado
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 ...