United States District Court, D. Colorado
ORDER ADOPTING IN PART AND REJECTING IN PART
SEPTEMBER 4, 2019 RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE
WILLIAM J. MARTÍNEZ JUDGE
This
matter is before the Court on the September 4, 2019
Recommendation by U.S. Magistrate Judge S. Kato Crews (the
“Recommendation”) (ECF No. 62) that the
above-captioned Defendants' Motion to Dismiss Plaintiff
Youssef Moudden's (“Plaintiff” or
“Moudden”) Amended Complaint and Jury Demand (the
“Motion to Dismiss”) (ECF No. 19) and
Defendants' Early Motion for Partial Summary Judgment
(the “Motion for Summary Judgment”) (ECF No. 32)
be granted. The Recommendation is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B);
Fed.R.Civ.P. 72(b). For the reasons set forth below, the
Recommendation is adopted in part, and rejected in part.
I.
BACKGROUND
On
December 11, 2018, Plaintiff filed the operative Amended
Complaint and Jury Demand. (ECF No. 13.) Plaintiff's
allegations, which the Court accepts as true only for
purposes of the Motion to Dismiss, are as follows:
Plaintiff
is a former Research Associate and Lecturer in the
Departments of Aerospace Engineering Sciences
(“AES”) and Atmospheric and Oceanic Studies
(“ATOC”) for Defendant University of Colorado
Boulder (the “University”). (Id. at 1.)
He identifies as black and African-American, and his national
origin is Moroccan.[1] Plaintiff worked at the University from
June or July 2007 to the end of the Fall 2016 semester.
(Id. at 1.)
At some
point while working as a Research Assistant for AES,
Plaintiff became interested in becoming a lecturer in ATOC.
(Id. at 4.) At all relevant times, Defendant John
Cassano (“Cassano”) was responsible for selecting
candidates for teaching positions in ATOC, subject to the
approval of the chair of ATOC, Defendant Cora Randall
(“Randall”). (Id. at 4.) Cassano and
Randall first became aware of Plaintiff's desire to
lecture in ATOC on June 11, 2013, when Plaintiff expressed
interest in a lecturing vacancy. (Id. at 4.) They
did not consider Plaintiff for the position. (Id. at
4.)
Cassano
and Randall were again made aware of Plaintiff's interest
in a Lecturer position in ATOC in April 2014, when he applied
to teach the courses ATOC 1050 and 1060. (Id. at
4-5.) According to Plaintiff, Defendants ultimately hired a
“less qualified candidate” with “inferior
teaching experience and inferior research experience.”
(Id. at 5.)
In
August 2014, Plaintiff e-mailed Cassano from a different
e-mail address under the pseudonym “Jason
McLeif.” (Id. at 5.) Plaintiff, posing as
“McLeif, ” stated in an email to Cassano that he
was a post-doctoral student at Colorado State University and
was inquiring about lecturer vacancies in ATOC. (Id.
at 5.) Cassano responded and informed “McLeif”
(i.e., Plaintiff) that there were currently no
vacancies, but that he would keep him apprised 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.) Cassano never informed
Plaintiff (i.e., Youssef Moudden) of any teaching
vacancy and never invited him to apply. (Id.)
Plaintiff
subsequently applied and was rejected for an ATOC lecturer
position in May 2015, October 2015, and May 2016.
(Id. at 6-8.) At various times, Plaintiff told his
supervisor Defendant Jeffrey Forbes (“Forbes”)
that the University was refusing to consider him for the
positions to which he applied, while it continued to consider
“McLeif.” (Id. at 10.) Plaintiff
eventually expressed to Forbes his suspicion of racial
discrimination on the part of the University. (Id.
at 10-11.) “Forbes['] responses were extremely
derogatory. At different times, his responses were:
‘[Y]ou need to stop whining,' ‘[Y]ou are a
menace,' [and] ‘if war breaks I think you'll be
fighting for the other side.'” (Id. at
11.)
After
Plaintiff again complained to Forbes in May 2016, Forbes
stated to Plaintiff, “I think [Cassano] will be voting
for Trump!” (Id. at 11.) Forbes then told
other ATOC personnel that “McLeif” and Plaintiff
were the same individual. (Id. at 12.) Forbes did
not report Plaintiff's complaints to the University's
Office of Institutional Equity and Compliance
(“OIEC”) as required by the University's
Discrimination and Harassment Policy and Procedures.
(Id. at 12.) Plaintiff alleges that Cassano and
Randall subsequently “decide[d] on a devious plot to
correct the situation to their advantage, ” and
immediately hired Plaintiff to teach ATOC 1050 for the Fall
2016 semester. (Id. at 12.)
Shortly
after the Fall 2016 semester began, “it became clear to
Plaintiff that he was assigned to teach [ATOC 1050] only to
be subjected to an extremely hostile work environment.”
(Id. at 13.) On August 22, 2016, Defendant Melissa
Nigro (“Nigro”) asked Plaintiff's teaching
assistant, Garrett Rue, to provide her with information about
Plaintiff's class. (Id. at 13.) Plaintiff
reported this incident to the OIEC in March 2017.
(Id. at 13.)
On
August 31, during the second week of classes, Randall
summoned Plaintiff to her office and told him she had
“heard some concerns about [Plaintiff's]
class.” (Id. at 13-14.) One student, out of
320, had expressed to Randall that Plaintiff had not answered
a question of hers to her satisfaction. (Id. at 14.)
Defendant
Nigro began to instruct Plaintiff, shortly before class
periods would begin, “how he should conduct his
lectures.” (Id. at 14.) Nigro also contacted
Plaintiff on October 7, 2016 to tell him that one of his
“learning assistants” (“LAs, ”
undergraduate students who assist a lecturer) was concerned
that Plaintiff had instructed the LA to grade other
students' assignments. (Id. at 14.) Nigro told
Plaintiff that the University “has strict rules against
LAs grading student assignments, ” but subsequently
admitted that the LA program had no published set of rules.
(Id. at 14.) Unbeknownst to Plaintiff at the time,
Nigro also held frequent meetings with the LAs, where she
requested that they provide comments about and criticisms of
Plaintiff's class. (Id. at 15.)
In the
fall of 2016, ATOC sought a lecturer for the Spring 2017 ATOC
1050 course. (Id. at 17.) Plaintiff communicated to
Randall his interest in the position on August 31, 2016, but
Defendants instead hired Giuliana Turi who, according to
Plaintiff, at the time was less qualified for the position
than he was. (Id. at 17-18.)
Plaintiff
met with Lang Farmer, the University's Associate Dean of
the College of Arts & Sciences, on June 1, 2017, to
discuss his concerns about the above-detailed events.
(Id. at 18.) Lang “acknowledged that it is not
normal to scrutinize an instructor within the first two weeks
over minor comments from students.” (Id. at
18.) Lang “also labeled ‘very fishy' the fact
that ATOC failed to inform Plaintiff of teaching positions
numerous times while they always informed Jason
McLeif.” (Id. at 18.)
Plaintiff,
alleging that Defendants discriminated against him on account
of his race and/or national origin, filed his Amended
Complaint and Jury Demand with the Court on December 11,
2018. (Id.) Plaintiff brings claims under Title VII,
42 U.S.C. § 2000e et seq. (“Title
VII”), equal protection claims under 42 U.S.C. §
1983, as well as a claim under the Colorado
Anti-Discrimination Act (“CADA”), and a breach of
contract claim. (Id. at 21-26.)
Defendants
on December 26, 2018, filed a Motion to Dismiss
Plaintiff's Amended Complaint and Jury Demand. (ECF No.
19.) Plaintiff filed a Response on January 7, 2019 (ECF No.
22), and Defendants on January 23, 2019 filed a Reply (ECF
No. 29).
On
February 7, 2019, Defendants filed a Motion for Partial
Summary Judgment. (ECF No. 32.) Plaintiff filed a Response on
February 26, 2019 (ECF No. 33), and Defendants on March 13,
2019 filed a Reply (ECF No. 35).
On
September 4, 2019, U.S. Magistrate Judge S. Kato Crews issued
a Recommendation, recommending that Defendants' Motions
be granted. (ECF No. 62.) Plaintiff filed a timely Objection
to the Recommendation (ECF No. 68), and Defendants filed a
Response (ECF No. 70).
II.
STANDARDS OF REVIEW
A.
Review of a Magistrate Judge's Recommendation
When a
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district court “determine de novo any part of
the magistrate judge's [recommendation] that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). 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.” Id.
B. Rule
56 Motion for Summary Judgment
Summary
judgment is appropriate only if there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Henderson v.
Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir.
1994). Whether there is a genuine dispute as to a material
fact depends upon whether the evidence presents a sufficient
disagreement to require submission to a jury or conversely,
is so one-sided that one party must prevail as a matter of
law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49
(1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132
(10th Cir. 2000); Carey v. U.S. Postal Serv., 812
F.2d 621, 623 (10th Cir. 1987). The Court must resolve
factual ambiguities against the moving party, thus favoring
the right to a trial. Houston v. Nat'l Gen. Ins.
Co., 817 F.2d 83, 85 (10th Cir. 1987).
C. Rule
12(b)(6) Motion to Dismiss for Failure to State a Claim
Under
Federal Rule of Civil Procedure 12(b)(6), a party may move to
dismiss a claim in a complaint for “failure to state a
claim upon which relief can be granted.” The 12(b)(6)
standard requires the Court to “assume the truth of the
plaintiff's well-pleaded factual allegations and view
them in the light most favorable to the plaintiff.”
Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174,
1177 (10th Cir. 2007). In ruling on such a motion, the
dispositive inquiry is “whether the complaint contains
‘enough facts to state a claim to relief that is
plausible on its face.'” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). Granting a motion to dismiss “is a harsh
remedy which must be cautiously studied, not only to
effectuate the spirit of the liberal rules of pleading but
also to protect the interests of justice.” Dias v.
City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th
Cir. 2009) (internal quotation marks omitted). “Thus,
‘a well-pleaded complaint may proceed even if it
strikes a savvy judge that actual proof of those facts is
improbable, and that a recovery is very remote and
unlikely.'” Id. (quoting Twombly,
550 U.S. at 556).
D.
Review of a Pro Se ...