Moudden v. University of Colorado Boulder

          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 ...