Gonzales v. Sizemore
ORDER by Judge Philip A. Brimmer on 3/10/15. ORDERED: The Recommendation of United States Magistrate Judge (the Recommendation) [Docket No. 31] is ADOPTED in part. ORDERED: Defendants' Motion to Dismiss [Docket No. 13] filed by defendants the City and County of Denver, Community Planning and Development (the City) and Michael Sizemore is GRANTED in part. ORDERED: Plaintiff's claim against Mr. Sizemore under 42 U.S.C. § 1983 is DISMISSED. ORDERED: The Joint Request for Ruling with Respect to Defendant Sizemore's Objections to Recommendation of Magistrate Judge [Docket No. 48] is DENIED as MOOT. ORDERED: This case is CLOSED. (kpreu)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 13-cv-00946-PAB-CBS
CITY AND COUNTY OF DENVER, by and through Community Planning and
MICHAEL SIZEMORE, in his personal capacity,
This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “Recommendation”) [Docket No. 31]. This case arises out of the
2011 termination of plaintiff Joaquin Gonzales from his position as a Chief Inspector for
the Zoning and Neighborhood Inspection Service of the City and County of Denver.
The magistrate judge recommends that the Court deny Defendants’ Motion to Dismiss
[Docket No. 13] with respect to defendant Michael Sizemore. On January 23, 2014, Mr.
Sizemore filed timely objections [Docket No. 32] to the Recommendation. On February
7, 2014 the Court received notice that Mr. Sizemore had filed for bankruptcy. Docket
No. 34. Accordingly, on February 19, 2014, the Court administratively closed the case
pending notice from the parties that the automatic stay had been lifted. Docket No. 41
at 9, 10. On April 22, 2014, the Court reopened the case, Docket No. 44, af ter plaintiff
indicated that he had obtained relief from the automatic stay on April 15, 2014 to
pursue his claim against Mr. Sizemore. Docket No. 43. The Court will “determine de
novo any part of the magistrate judge’s disposition that has been properly objected to.”
Fed. R. Civ. P. 72(b)(3).
The relevant factual history is set forth in the Recommendation and will not be
recited here. See Docket No. 31 at 1-3. The magistrate judge recommends that the
Court deny defendants’ motion to dismiss plaintiff’s Equal Protection claim 1 against Mr.
Sizemore because Mr. Sizemore, having been sued in his individual capacity, is not in
privity with the City. Docket No. 31 at 9-11. Mr. Sizemore objects to the
Recommendation in part on the basis that plaintif f is precluded from relitigating the
issue of discrimination. Docket No. 32 at 8.
Issue preclusion prevents relitigation of only those specific issues that were
actually litigated and decided in a previous proceeding. Gallegos v. Colo. Ground
Water Comm’n, 147 P.3d 20, 32 (Colo. 2006). It applies where (1) the issue in question
was actually litigated and necessarily adjudicated; (2) the party against whom
preclusion is sought was a party or is in privity with a party to the previous proceeding;
(3) the previous proceeding ended in a final judgment on the merits; and (4) the party
against whom estoppel is sought had a full and fair opportunity to litigate the issue. Id.
An issue is “actually litigated” if it is “raised by the parties in the prior action” and it is
“necessarily adjudicated” if “a determination on that issue [is] necessary to a judgment.”
Plaintiff asserts a claim pursuant to 42 U.S.C. § 1983 against Mr. Sizemore,
alleging that Mr. Sizemore violated the Equal Protection Clause of the Fourteenth
Amendment by causing plaintiff to be placed on investigatory suspension and then
terminated on the basis of plaintiff’s national origin. Docket No. 31 at 9-10.
Stone v. Dep’t of Aviation, 290 F. App’x 117, 123 (10th Cir. 2008) (internal citation
Mr. Sizemore argues that the “sole issue [in this case] is whether Defendants
discriminated against Plaintiff on the basis of his national origin when he was dismissed
from his employment” and that this “issue has been fully litigated in state court.” Docket
No. 32 at 8. Plaintiff does not address Mr. Sizemore’s issue preclusion argument in his
response to Mr. Sizemore’s objections. See Docket No. 39.
The state court addressed the following arguments advanced by plaintiff:
(1) the hearing officer abused her discretion by placing the burden on Mr.
Gonzalez to disprove an essential fact underlying his dismissal; (2) the
hearing officer abused her discretion by failing to compare Mr. Gonzales’
actions to those of his peer, Kristofek, for purposes of his claim of nationalorigin discrimination; (3) the CSA Board failed to address his national origin
discrimination claim in its review of the hearing officer’s initial determination;
and (4) there is no competent evidence in the record to support charges of
dishonesty and/or failure to maintain satisfactory working relationships.
Docket No. 32-3 at 7. With respect to plaintiff’s second argument, the state court found
The hearing officer’s findings demonstrate that Kristofek was not similarly
situated to Mr. Gonzales with respect to the reasons for termination. There
was no evidence that Kristofek lied to his colleagues and/or his superiors
about granting paid leave. Further, in the one instance that Kristofek granted
such leave, he staggered the time off to ensure office coverage. This was
done under the guidance of his more experienced colleague, Mr. Gonzales,
and occurred early in his tenure when his manager, Sizemore, was on leave.
Docket No. 13-3 at 9. With respect to plaintiff’s third argument, the state court found
[T]he Board did address Mr. Gonzales’ discrimination defense. On page
three of its Decision and Order, the Board listed all of the hearing officers’
findings, including her finding that “the evidence as a whole does not
establish that the dismissal was motivated by an intent to discriminate
against [Mr. Gonzales] because of his national origin, Hispanic.” On the next
page of its Order, the Board considered Mr. Gonzales’ appeal and upheld the
hearing officer’s findings, stating “the record demonstrates more than
sufficient evidence supporting the Hearing Officer’s findings and conclusions
and the decision is therefore not clearly erroneous.” . . .
Here, the CSA Board finding, “taken together with reasonable implications
based upon its assessment of the totality of the evidence presented at the
hearing, are adequate to apprise the Court of the basis of its decision.” Thus
the Court finds the Board did not err as Mr. Gonzales claims.
Docket No. 13-3 at 9-10 (internal citations omitted). The state court also found that
there was “competent evidence to support [plaintiff’s] termination for dishonesty and
failure to maintain satisfactory working relationships.” Id.
The elements of issue preclusion are satisfied with respect to plaintiff’s
discrimination claim. First, the state court determined that Mr. Kristofek is not similarly
situated to plaintiff, a key element in plaintiff’s claim. See Docket No. 27 at 10, ¶ 44
(“No other similarly situated non-Hispanic employee has been subjected to the same
unequal treatment or deprivation of constitutional equal protection rights as Plaintiff
Gonzales.”); Docket No. 31 at 11 (“Mr. Gonzales alleges that, based on his national
origin, Defendant Sizemore treated him differently than the only other Chief Inspector,
Mr. Kristofek.”). Plaintiff’s complaint does not allege any other circumstances giving
rise to an inference of discrimination. See Plotke v. White, 405 F.3d 1092, 1101 (10th
Cir. 2005) (“a variety of circumstances  can give rise to an inference of discriminatory
motive, including: ‘actions or remarks made by decisionmakers that could be viewed as
reflecting a discriminatory animus . . ., preferential treatment given to employees
outside the protected class . . ., a pattern of recommending the plaintiff for positions for
which [he] is not qualified [or over-qualified] and failure to surface plaintiff’s name for
positions for which [he] is well-qualified. A plaintiff might also rely upon the fact that the
defendant, following plaintiff’s termination, continued to seek applicants to f ill the
position’”) (citation omitted); see generally Docket No. 27.
Furthermore, the state court found that the Denver Career Service Authority
(“CSA”) Board considered and rejected plaintiff’s discrimination claim and that the
Board did not err in finding the plaintiff was terminated for legitimate and nondiscriminatory reasons, namely, dishonesty and failure to maintain satisfactory
relationships. See Docket No. 13-3 at 10. Thus, the issue of whether plaintiff’s
termination was based on unlawful national origin discrimination was actually litigated
by the parties and necessary to the state court’s determination that remand was
Plaintiff does not dispute that the remaining three elements of issue preclusion
are satisfied insofar as plaintiff was a party to the state court action and is a party to this
action, the state court action resulted in a f inal judgment on the merits, and plaintiff had
a full and fair opportunity to litigate the issue. See Sunny Acres Villa, Inc. v. Cooper, 25
P.3d 44, 47 (Colo. 2001) (“[A] full and fair opportunity to litigate an issue requires ‘the
availability of procedures in the earlier proceeding commensurate with those in the
subsequent proceeding.’”). Therefore, even if Mr. Sizemore is not in privity with the
City, the fact that plaintiff is precluded from relitigating the issue of discrimination
precludes his claim against Mr. Sizemore in his individual capacity as well.
In sum, plaintiff is precluded from relitigating the issue of whether his termination
was the result of unlawful discrimination on the basis of national origin.
Wherefore, it is
ORDERED that the Recommendation of United States Magistrate Judge (the
“Recommendation”) [Docket No. 31] is ADOPTED in part. It is further
ORDERED that Defendants’ Motion to Dismiss [Docket No. 13] filed by
defendants the City and County of Denver, Community Planning and Development (the
“City”) and Michael Sizemore is GRANTED in part. Plaintiff’s claim against Mr.
Sizemore under 42 U.S.C. § 1983 is DISMISSED. It is further
ORDERED that the Joint Request for Ruling with Respect to Defendant
Sizemore’s Objections to Recommendation of Magistrate Judge [Docket No. 48] is
DENIED as moot. It is further
ORDERED that this case is CLOSED.
DATED March 10, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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