Gonzales v. Sizemore
ORDER. ORDERED that plaintiff Joaquin Gonzales's Motion to Amend or Alter the Judgment 51 is DENIED. Signed by Judge Philip A. Brimmer on 03/07/16.(jhawk, )
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 Motion to Amend or Alter the Judgment
[Docket No. 51] filed by plaintiff Joaquin Gonzales. As relevant to this order, on March
10, 2015, the Court granted in part defendants’ motion to dismiss on the grounds that
plaintiff’s claims against defendant Michael Sizemore are barred by the doctrine of
issue preclusion. Docket No. 49. 1 Final judgment entered in this matter on March 12,
2015. Docket No. 50. Plaintiff seeks an order vacating final judgment on the ground
that issue preclusion was not properly before the Court. The relevant factual
background is discussed in the Court’s March 10, 2015 Order, see Docket No. 49 at 35, and the January 13, 2014 Recommendation of United States Magistrate Judge (the
“Recommendation”), see Docket No. 31 at 1-2, and will not be recited here except as
In its March 10, 2015 Order, the Court also adopted the portion of the
Recommendation of United States Magistrate Judge (Docket No. 31) that found that
plaintiff’s claim against the City and County of Denver was barred by the doctrine of
claim preclusion. Docket No. 49; see also Docket No. 31 at 6-8.
necessary to resolve the instant motion.
Federal Rule of Civil Procedure 59(e) provides that a party may file a motion to
alter or amend judgment no later than twenty-eight days after the entry of judgment.
Fed. R. Civ. P. 59(e). “Rule 59(e) allows a party to direct the district court’s attention to
newly discovered material evidence or a manifest error of law or fact, and enables the
court to correct its own errors and thus avoid unnecessary appellate procedures.” Moro
v. Shell Oil Co., 91 F.3d 872, 876 (7th Cir. 1996). Such a m otion is appropriate in the
event of “(1) an intervening change in the controlling law, (2) new evidence previously
unavailable, [or] (3) the need to correct clear error or prevent manifest injustice,” and
may be granted “where the court has misapprehended the facts, a party’s position, or
the controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). The decision to grant or deny a Rule 59 motion is committed to the Court’s
discretion. Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997).
Plaintiff argues that the Court dismissed plaintiff’s complaint on a ground that
was not raised by defendants’ motion to dismiss or by the Recommendation. Docket
No. 51 at 2. Specifically, plaintiff argues that defendants sought dismissal on the
ground that plaintiff’s claims were barred by claim preclusion, while the Court found that
those claims were barred by issue preclusion. See id.
Defendants’ motion to dismiss argued that plaintiff’s claims were barred by the
doctrine of res judicata. See Docket No. 13 at 4-5. As plaintiff notes, Docket No. 53 at
2, the Tenth Circuit has, at times, used the phrase “res judicata” to refer generally to
both claim and issue preclusion. See Bolden v. City of Topeka, Kan., 441 F.3d 1129,
1139 (10th Cir. 2006); Park Lake Resources Ltd. Liability Co. v. U.S. Dep’t of Agric.,
378 F.3d 1132, 1135 (“Res judicata doctrine encom passes two distinct barriers to
repeat litigation: claim preclusion and issue preclusion”). Other cases, however, have
used the phrase “res judicata” to refer exclusively to claim preclusion, reserving the
term “collateral estoppel” for issue preclusion. See, e.g., Yapp v. Excel Corp., 186 F.3d
1222, 1226 n.1 (10th Cir. 1999) (substituting the phrase “claim preclusion” where the
parties used the more general “res judicata”).
Plaintiff argues that defendants’ motion to dismiss was limited to claim preclusion
because the case on which defendants principally relied, Bolling v. City and Cty. of
Denver, 790 F.2d 67 (10th Cir. 1986), was decided on the basis of claim preclusion.
Bolling involved a claim that, like the claims at issue in this case, was barred by an
adverse decision of the Career Service Board of the City and County of Denver that
was subsequently upheld on judicial review by the District Court for the City and County
of Denver, Colorado. Id. at 68. The Tenth Circuit evaluated the case under the full
faith and credit provision of 28 U.S.C. § 1738 and found that, because Colorado gives
preclusive effect to state court judgments that review administrative determinations and
because Colorado public policy “requires the joinder of all of the petitioner’s claims in
one action,” the plaintiff was barred from asserting any claims in federal court that she
could have brought in her state court proceeding. Id. (citation and quotation omitted).2
28 U.S.C. § 1738 provides that the judicial proceedings of any state court “shall
have the same full faith and credit in every court within the United States and its
Territories and Possessions as they have by law or usage in the courts of such State,
Territory or Possession from which they are taken.”
The Bolling court, however, also found that the state court proceedings included
sufficient procedural protections, noting that “the doctrine of collateral estoppel does not
apply when the party against whom the earlier decision is asserted did not have a full
and fair opportunity to litigate the claim or issue.” Id. (citation omitted). Given Bolling’s
finding concerning an element of issue preclusion,3 its holding does not neatly fit into
either the “claim preclusion” or “issue preclusion” category.
Even accepting plaintiff’s argument that defendants’ reliance on Bolling did not
properly invoke issue preclusion, defendants’ reply clarified any ambiguity. In their
reply, defendants argued that the four elements of issue preclusion were satisfied in
this case because plaintiff’s claim of national origin disparate treatment was fully and
fairly litigated at the state court level. Docket No. 24 at 6-7. Additionally, Mr. Sizemore
raised issue preclusion again in his objection to the Recommendation. See Docket No.
32 at 8 (“Issue preclusion should . . . apply in this case because the sole issue is
whether Defendants discriminated against Plaintiff on the basis of his national origin
when he was dismissed from his employment. That issue has been fully litigated in
state court.”). Even if plaintiff believed that defendants improperly raised issue
preclusion for the first time on reply, plaintiff had the opportunity to address this
argument in responding to Mr. Sizemore’s objection. Beaird v. Seagate Tech., Inc., 145
F.3d 1159, 1164 (10th Cir. 1998) (noting that a nonmoving party should be given an
Under Colorado law, issue preclusion 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.
Gallegos v. Colo. Ground Water Commc’n, 147 P.3d 20, 32 (Colo. 2006).
opportunity to respond to new arguments in a reply). Plaintiff did not do so. See
Docket No. 39.
Moreover, assuming plaintiff did not have the opportunity to submit briefing on
issue preclusion, plaintiff has not demonstrated any “clear error” or “manifest injustice”
sufficient to grant relief under Rule 59(e). Servants of the Paraclete, 204 F.3d at 1012.
Plaintiff’s motion does not contain evidence or argument sufficient to call into question
the Court’s holding that his claim against Mr. Sizemore is barred by the doctrine of
issue preclusion. Plaintiff’s only assertion is that a key element of his discrimination
claim, whether plaintiff was treated differently than similarly situated employees, was
not fully litigated in the earlier proceedings. Docket No. 53 at 5-6. Specifically, plaintiff
argues that the City hearing officer concluded that plaintiff was not similarly situated to
Mr. Sizemore only, while plaintiff alleges in this case that two other employees, Tim
Kristofer and Tom Kennedy, were similarly situated. Id. The alleged disparate
treatment of plaintiff, Mr. Kristofer, and Mr. Kennedy, however, was fully litigated in the
state proceedings. The Career Service Board found that plaintiff was not similarly
situated to Mr. Kennedy because Mr. Kennedy’s grants of time off were governed by
previous standards not in effect at the time of plaintiff’s termination. Docket No. 13-1 at
14. In affirming the decision of the Career Service Board, the district court found that
plaintiff was not similarly situated to Mr. Kristofek because “[t]here was no evidence that
Kristofek lied to his colleagues and/or his superiors about granting paid leave.” Docket
No. 32-3 at 9.
In sum, the Court finds that issue preclusion was properly before the Court at the
time the Court ruled on Mr. Sizemore’s objection to the Recommendation. The Court
further finds that plaintiff has not demonstrated any clear error or manifest injustice in
the Court’s finding that his claim against Mr. Sizemore is barred by the doctrine of issue
preclusion. As a result, the Court will not amend or modify the judgment entered in this
For the foregoing reasons, it is
ORDERED that plaintiff Joaquin Gonzales’s Motion to Amend or Alter the
Judgment [Docket No. 51] is DENIED.
DATED March 7, 2016.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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