Bay Downs Douglas v. Mountain Song Community School et al

Filing 32

ORDER by Magistrate Judge Kristen L. Mix on 4/15/16. Motion to Dismiss 25 is GRANTED in part and DENIED in part.(lgale, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01056-KLM
NEAH BAY DOWNS DOUGLAS,
Plaintiff,
v.
MOUNTAIN SONG COMMUNITY SCHOOL,
EVELYN CORTEZ-FORD, in her individual capacity, and
JAMES JACK ROBERTS, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Mountain Song Community School’s
(“MSCS”) Motion to Dismiss [#25]1 (the “Motion”). Plaintiff filed a Response [#28] in
opposition to the Motion, and Defendant MSCS filed a Reply [#29]. The Court has
reviewed the Motion, Response, Reply, the entire case file, and the applicable law, and is
sufficiently advised in the premises. For the reasons set forth below, the Motion [#25] is
GRANTED in part and DENIED in part.2
I. Summary of the Case3
1

“[#25]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
2

The case has been referred to the undersigned for all purposes [#12] pursuant to the
Court’s Pilot Program and 28 U.S.C. § 636(c), upon consent of the parties [#11].
3

All well-pled facts from the complaint are accepted as true and viewed in the light most
favorable to the plaintiff. Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).

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Plaintiff is the former School Director of Defendant MSCS, a Colorado charter school
located in Colorado Springs, Colorado. Compl. [#1] ¶¶ 6-7. In connection with the
following events, Plaintiff asserts five claims: (1) gender discrimination in violation of Title
VII, 42 U.S.C. § 2000e-2, against Defendant MSCS; (2) violation of the Fourteenth
Amendment right to intimate association against Defendant MSCS; (3) violation of the
Colorado Open Meetings Law, Colo. Rev. Stat. § 24–6–402, against Defendant MSCS; (4)
violation of the Colorado Lawful Off-Duty Activities Statute, Colo. Rev. § 24–34–402.5,
against Defendant MSCS; and (5) violation of the First Amendment right to free speech and
association, against Defendant MSCS and the other two Defendants, Evelyn Cortez-Ford
and James Jack Roberts. Id. ¶¶ 166-221. In the present Motion [#25], Defendant MSCS
seeks dismissal of the first four claims pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).
Plaintiff, a female, was a founder of Defendant MSCS and in March 2013 was
offered the position of School Director. Compl. [#1] ¶¶ 31-32, 42. In the 2013-2014 school
year, Bradley McCullough (“McCullough”) began teaching at the school as a sixth grade
teacher. Id. ¶¶ 48-49. In November 2013, he informed Plaintiff that he had feelings for her
and wanted to develop a relationship with her, which they did over the course of the
following two months, although the Complaint does not provide detail about the parameters
of the relationship. Id. ¶ 54-55. Both Plaintiff and Mr. McCullough separated from their
respective spouses and discussed marrying. Id. ¶ 57. Although the two did not discuss
their relationship or engage in activities related to their relationship at the school or during
work hours, they decided to meet with the school’s pedagogical director on January 5, 2014
in order to disclose the existence of their relationship. Id. ¶¶ 59-60. On January 6, 2014,
Plaintiff also informed School Board Vice President Raj Solanki (“Solanki”) of the
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relationship. Id. ¶ 63. On February 5, 2014, Mr. Solanki told Plaintiff that he had decided
to call a closed Board meeting on February 6, 2014, in order to discuss Plaintiff and her
relationships with her husband and Mr. McCullough. Id. ¶ 86. On the afternoon of
February 6, 2014, before the meeting, Mr. Solanki went to Plaintiff’s house and told her that
he did not agree with how she had put her professional ambitions ahead of her
responsibilities to her family. Id. ¶ 91. Plaintiff attended the Board meeting later that day
and answered the Board’s questions. Id. ¶ 95. Two days later, the Board held another
closed meeting to discuss the same issues, and Plaintiff answered more questions. Id. ¶¶
101, 107-08. On February 8 or 9, 2014, Mr. McCullough resigned his position with the
school. Id. ¶¶ 122, 195. On February 9, 2014, a Sunday, the Board held another meeting,
in which it decided to terminate Plaintiff’s employment. Id. ¶¶ 126, 130.4
II. Standard of Review
A.

Fed. R. Civ. P. 12(b)(1)
Subject matter jurisdiction may be challenged by a party or raised sua sponte by the

court at any point in the proceeding. E.g., Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 16-19,
(1951); Harris v. Illinois-California Express, Inc., 687 F.2d 1361, 1366 (10th Cir. 1982); Fed.
R. Civ. P. 12(h)(3). A motion to dismiss pursuant to Rule 12(b)(1) may take two forms: a
facial attack or a factual attack. When reviewing a facial attack on a complaint pursuant
to Rule 12(b)(1), the Court accepts the allegations of the complaint as true. Holt v. United
States, 46 F.2d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack on a
complaint supported by affidavits or other documents, the Court makes its own factual

4

Additional material allegations are discussed below in connection with the Court’s

analysis.

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findings and need not convert the motion to one brought pursuant to Rule 56 of the Federal
Rules of Civil Procedure. Id. at 1003.
Rule 12(b)(1) concerns whether the Court has jurisdiction to properly hear the case
before it. Dismissal of a federal claim for lack of subject-matter jurisdiction “is proper only
when the claim is ‘so insubstantial, implausible, foreclosed by prior decisions of this Court,
or otherwise completely devoid of merit as not to involve a federal controversy.” Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation v.
County of Oneida, 414 U.S. 661, 666 (1974)). Because “federal courts are courts of limited
jurisdiction,” the Court must have a statutory basis to exercise its jurisdiction. Montoya v.
Chao, 296 F.3d 952, 955 (10th Cir. 2002); see Fed. R. Civ. P. 12(b)(1). Statutes conferring
subject-matter jurisdiction on federal courts are to be strictly construed. F. & S. Const. Co.
v. Jensen, 337 F.2d 160, 161 (10th Cir. 1964). “The burden of establishing subject-matter
jurisdiction is on the party asserting jurisdiction.” Id. (citing Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994)).
B.

Fed. R. Civ. P. 12(b)(6)
Rule 12(b)(6) tests “the sufficiency of the allegations within the four corners of the

complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340
(10th Cir. 1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient
facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to
support plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th
Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[P]lausibility refers
to the scope of the allegations in a complaint: if they are so general that they encompass
a wide swath of conduct, much of it innocent, then the plaintiff[ ] [has] not nudged [his]
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claims across the line from conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d
1188, 1190 (10th Cir. 2012) (internal quotations and citations omitted).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). However, “[a] pleading that offers
‘labels and conclusions’ or a formulaic recitation of the elements of a cause of action will
not do. Nor does the complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Id. (citation omitted). That said, “[s]pecific facts are not necessary;
the statement need only give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests;” the 12(b)(6) standard does not “require that the complaint
include all facts necessary to carry the plaintiff’s burden.” Khalik, 671 F.3d at 1192 .
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for
more than a sheer possibility that defendant has acted unlawfully.” Id. (citation omitted).
As the Tenth Circuit has explained, “the mere metaphysical possibility that some plaintiff
could prove some set of facts in support of the pleaded claims is insufficient; the complaint
must give the court reason to believe that this plaintiff has a reasonable likelihood of
mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). “Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Iqbal, 556 U.S. at 678 (citation omitted).
III. Analysis
A.

Title VII Gender Discrimination
Plaintiff asserts a disparate treatment claim of intentional gender discrimination
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under Title VII. Compl. [#1] ¶¶ 166-74.
In Mormon v. Campbell County Memorial Hospital, __ F. App’x __, __, No. 14-8090,
2015 WL 7753244 (10th Cir. Dec. 2, 2015), the Tenth Circuit Court of Appeals recently
discussed the standard gender discrimination claims must meet to overcome a motion to
dismiss. Although Mormon involved a case of gender discrimination under the Fourteenth
Amendment, “the elements of a plaintiff’s case are the same, based on the disparate
treatment elements outlined in McDonnell Douglas, whether that case is brought under §§
1981 or 1983 or Title VII.” 2015 WL 7753244, at *5 n.5 (quoting Drake v. City of Fort
Collins, 927 F.2d 1156, 1162 (10th Cir. 1991); see also, e.g., Mancell v. McHugh, __ F.
App’x __, __, No. 15-2079, 2016 WL 285087, at *1 (10th Cir. Jan 25, 2016) (applying
McDonnell Douglas framework in the context of a Title VII gender discrimination claim).
“To prove an equal-protection claim based on disparate treatment, a plaintiff must
provide either direct evidence of discrimination or prevail under the burden-shifting
framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972).” Mormon, 2015
WL 7753244, at *5 (citing Khalik, 671 F.3d at 1192). “Under McDonnell Douglas, the
plaintiff must first prove a prima facie case of discrimination.” Id. “If she does so, then the
burden ‘shifts to the defendant to produce a legitimate, non-discriminatory reason for the
adverse employment action.’” Mormon, 2015 WL 7753244, at *5 (quoting Khalik, 671 F.3d
at 1192). “If the defendant provides such a reason, ‘the burden then shifts back to the
plaintiff to show that the plaintiff’s protected status was a determinative factor in the
employment decision or that the employer’s explanation is pretext.’” Id.
The Mormon court next discussed what this framework means in the context of a
Rule 12(b)(6) motion to dismiss. Mormon, 2015 WL 7753244, at *5. “In Swierkiewicz v.
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Sorema N.A., 534 U.S. 506 (2002), the Supreme Court explained that McDonnell Douglas’s
prima facie case is ‘an evidentiary standard, not a pleading requirement.’” Id. (quoting
Swierkiewicz, 534 U.S. at 510). “As the [Supreme] Court made clear, the standards for
employment discrimination set forth in McDonnell Douglas simply do not ‘apply to the
pleading standard that plaintiffs must satisfy in order to survive a motion to dismiss.’”
Mormon, 2015 WL 7753244, at *5 (quoting Swierkiewicz, 534 U.S. at 511). “Still, Twombly
and Iqbal require that a plaintiff allege a plausible claim.” Mormon, 2015 WL 7753244, at
*5. The Court “can evaluate [a plaintiff’s gender discrimination] claim’s plausibility only by
considering the prima facie case of discrimination that she would need to prove in court.”
Id. “In pleading a discrimination claim, she need not set forth a prima facie case for
discrimination, . . . [b]ut she must allege facts that make such a claim at least plausible.”
Id.
“Thus, to evaluate whether her complaint survives a motion to dismiss, absent direct
evidence of discrimination, we examine the first step of the McDonnell Douglas framework:
the elements [the plaintiff] would need to establish to prove a prima-facie case of gender
discrimination.” Id. at *6 (citing Khalik, 671 F.3d at 1192). “That is the only way to assess
if her claim is, in fact, plausible.” Mormon, 2015 WL 7753244, at *6. The plaintiff “must
have pleaded a plausible claim of gender discrimination to survive dismissal.” Id. “The
inferences offered by the McDonnell Douglas framework assist judges in resolving motions
to dismiss by providing an analytical framework to sift through the facts alleged.” Id. (citing
Messina v. Kroblin Transp. Sys., Inc., 903 F.2d 1306, 1308 (10th Cir. 1990)). “Although the
burden-shifting framework is only an evidentiary standard, we must recognize that ‘the
McDonnell Douglas framework should not be applied in a manner that renders it nothing
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more than an empty pleading formula, allowing every allegation of employer discrimination
to get to a jury.’” Mormon, 2015 WL 7753244, at *6 (quoting Zamora v. Elite Logistics, Inc.,
478 F.3d 1160, 1173 (10th Cir. 2007)).
A prima facie case of gender discrimination in a Title VII case generally requires a
plaintiff to show “that she is a member of a protected class, she suffered an adverse
employment action, and the challenged action occurred under circumstances giving rise
to an inference of discrimination.” Bennett v. Windstream Commc’n, Inc., 792 F.3d 1261,
1266 (10th Cir. 2015) (citing E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007)).
“While the elements of a prima facie case ‘are neither rigid nor mechanistic, their purpose
is the establishment of an initial inference of unlawful discrimination warranting a
presumption of liability in plaintiff’s favor.’” Bennett, 792 F.3d at 1266 (citing Adamson v.
Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1146 (10th Cir. 2008)).
Here, Defendant MSCS argues that Plaintiff fails to provide allegations
demonstrating that the challenged action occurred under circumstances giving rise to an
inference of discrimination. Motion [#25] at 13-19. In response, Plaintiff directs the Court’s
attention to the following allegations:
MSCS Board Vice President Raj Solanki conducted a biased and
unauthorized investigation of Ms. Douglas. Compl. [#1] ¶¶ 65-66, 81-82.
The investigation was in violation of MSCS’s internal policies. Id. ¶ 65. Mr.
Solanki relied on false information concocted by Jack Roberts, a school
employee with retaliatory animus toward Ms. Douglas. Id. ¶¶ 67-78. Mr.
Solanki conducted his investigation to undermine Ms. Douglas’ authority. Id.
¶ 85. Mr. Solanki also decided to hold a secret meeting on February 6, 2014
to discuss Ms. Douglas. Id. 86-90. Prior to the February 6 meeting, Mr.
Solanki went to Ms. Douglas’ house, and while there, he told Ms. Douglas
that he didn’t agree with how she had put her professional ambitions ahead
of her responsibilities to her family, an expression of his view that women
should be homemakers and housewives, not professionals. Id. ¶¶ 91-92.
During the February 6 secret meeting, and again at another meeting on
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February 8, 2014, MSCS Board member Martin Schneider engaged in
persistent and offensive questioning of Ms. Douglas about her sexual
relationships and practices. Id. ¶¶ 96-98, 112, 115. Mr. Schneider’s
inappropriate questions were an attack on Ms. Douglas. Id. ¶ 100. Mr.
Solanki also made inappropriate, joking comments about Ms. Douglas during
the meetings. Id. ¶¶ 113-114. Following these meetings, MSCS terminated
Ms. Douglas’ employment, allegedly for violating MSCS’s anti-nepotism
policy; however, there was no violation of that policy. Id. ¶¶ 130-138. Prior
to terminating Ms. Douglas, MSCS had never enforced its anti-nepotism
policy, despite knowledge of intimate relationships between employees and
between Board members and employees. Id. ¶¶ 139, 141-144. MSCS only
applied the anti-nepotism policy to a situation where a female employee has
supervisory authority over a male employee, ignoring the situation where a
male Board member used his authority to influence personnel decisions for
his intimate partner. Id. ¶¶ 140-144. After Ms. Douglas was terminated,
MSCS Board President Rita Issagholian told Ms. Douglas that the Board’s
investigation was motivated in part by the Board’s belief that Ms. Douglas’
could not effectively lead the School at the same time she was involved in a
relationship with Mr. McCullough. Id. 145.
Response [#28] at 4-5. Defendant MSCS disputes whether any of these other individuals
were similarly situated to Plaintiff, or whether the comments made by various other
individuals rise to the level of creating an inference of discrimination. Motion [#25] at 13-19.
However, Defendants MSCS does not direct the Court’s attention to any cases from within
the Tenth Circuit with comparable facts in which a motion to dismiss was granted. See also
Reply [#29] at 6-7. While Plaintiff’s allegations may not obviously demonstrate a prima
facie case, such is not the standard. See Mormon, 2015 WL 7753244, at *5. Rather, she
must simply provide allegations which demonstrate that her claim is, at a minimum,
plausible. See id. The Court finds that, at this early stage of the case, Plaintiff has met this
minimum threshold.
Accordingly, the Motion [#25] is denied to the extent Defendant MSCS seeks
dismissal of Plaintiff’s Title VII gender discrimination claim.
B.

Fourteenth Amendment Right to Intimate Association
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Plaintiff also asserts a claim for an alleged violation of the Fourteenth Amendment
right to intimate association. Compl. [#1] ¶¶ 175-90.
“In addition to a liberty interest in the right to marry, the Fourteenth Amendment
protects a liberty interest in the right of familial association.” Johnson v. Pomeroy, 294 F.
App’x 397, 401 (10th Cir. 2008). “The freedom of intimate association is ‘an intrinsic
element of personal liberty.’” Id. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 619-20
(1984)). “In Roberts, the Supreme Court held that application of the Minnesota Human
Rights Act to compel the Jaycees to accept women as regular members did not abridge the
male members’ freedom of intimate association or their freedom of expressive association.”
Johnson, 294 F. App’x at 401. “In describing the right of intimate association, the Court
distinguished between family relationships and other types of personal relationships–such
as those between members of the Jaycees–which are less likely to give rise to this
constitutional protection.” Id. “The Court recognized that ‘choices to enter into and
maintain certain intimate human relationships must be secured against undue intrusion by
the State . . . .” Id. (quoting Roberts, 468 U.S. at 617-18). “Among those intimate human
relationships are ‘[f]amily relationships, [which] by their nature, involve deep attachments
and commitments to the necessarily few other individuals with whom one shares not only
a special community of thoughts, experiences, and beliefs but also distinctively personal
aspects of one’s life.’” Johnson, 294 F. App’x at 401 (quoting Roberts, 468 U.S. at 619-20).
At the time of Plaintiff’s termination, the allegations show that the relationship
between Plaintiff and Mr. McCullough was romantic, non-marital, and only about three
months old. Compl. [#1] ¶¶ 54, 56. Both persons had separated from their spouses, but
there are no allegations that either had divorced. Id. ¶ 57. Plaintiff and Mr. McCullough
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had discussed marriage but there are no allegations of an engagement or of cohabitation.
Id. The Court notes that the parties did not raise or brief in any material way whether this
type of relationship is protected by the Fourteenth Amendment, and therefore the Court
does not address this issue.
Instead, Defendant MSCS’s argument focuses on whether the school’s antinepotism policy “passes muster under rational basis review.” Motion [#25] at 7. Although
Defendant MSCS’s suggestion that Plaintiff’s Complaint is artfully pled in order to avoid
dismissal is well-taken, the Court finds that, as Plaintiff argues, she has sufficiently alleged
at this early stage of the case that the anti-nepotism policy was not the driving reason for
her termination. See Reply [#29] at 2; Response [#28] at 6-7.
Specifically, Ms. Douglas has alleged that at the time of her termination there
was no violation of the anti-nepotism policy. Compl. [#1] ¶ 138. There was
no violation of the policy when Ms. Douglas was terminated because Mr.
McCullough had already resigned his position, and there could be no
violation of an anti-nepotism policy because of a relationship with a former
employee. Id. ¶ 123. After Mr. McCullough’s resignation, the Board’s only
justification for continuing to investigate and propose disciplining Ms. Douglas
was its desire to retaliate against Ms. Douglas for separating from her
husband and entering into a close emotional relationship with Mr.
McCullough and not comporting with the Board’s stereotypes of how women
should act or behave. Id. ¶ 124.
Response [#28] at 6-7. In addition, Plaintiff alleges “her close emotional relationship with
Mr. McCullough did not fall within any of the four categories of ‘close relationships’ set forth
in the [anti-nepotism] policy” and that prior to her, the school “had never enforced the antinepotism policy,” despite Plaintiff’s allegations that there had been other instances of such
conduct which had been purposefully overlooked by the Board. Compl. [#1] ¶¶ 110, 139,
141. If, as Plaintiff plausibly alleges, the Board’s purported termination of her was merely
a useful cover-up for its real reasons, then Defendant MSCS’s argument regarding whether
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the school’s anti-nepotism policy passes muster under rational basis review is inapplicable
here. Motion [#25] at 7.
Accordingly, the Motion [#25] is denied to the extent Defendant MSCS seeks
dismissal of Plaintiff’s Fourteenth Amendment claim for violation of the right to intimate
association.
C.

Colorado Open Meetings Law
The Colorado Open Meetings Law (“OML”), Colo. Rev. Stat. § 24–6–401, states that

“the formation of public policy is public business and may not be conducted in secret.”
Defendant MSCS argues that Plaintiff fails to demonstrate standing in connection with this
claim. Pursuant to Article III of the United States Constitution, federal courts only have
jurisdiction to hear particular cases and controversies.

Colo. Outfitters Ass’n v.

Hickenlooper, __F.3d__, __, Nos. 14-1290, 14-1292, 2016 WL 1105363, at *2 (10th Cir.
Mar. 22, 2016) (citing Susan B. Anthony List v. Driehaus, __ U.S. __, __, 134 S.Ct. 2334,
2341 (2014)). “To satisfy Article III’s case-or-controversy requirement, a plaintiff must
demonstrate standing to sue by establishing (1) an injury in fact, (2) a sufficient causal
connection between the injury and the conduct complained of, and (3) a likel[ihood] that the
injury will be redressed by a favorable decision.” Colo. Outfitters Ass’n, 2016 WL 1105363,
at *2 (citing Susan B. Anthony List, 134 S. Ct. at 2341) (internal quotation marks omitted).
“[A] federal court can’t ‘assume’ a plaintiff has demonstrated Article III standing in
order to proceed to the merits of the underlying claim, regardless of the claim’s
significance.” Colo. Outfitters Ass’n, 2016 WL 1105363, at *2 (citing Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 94 (1998)). “[T]he elements of standing ‘are not mere

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pleading requirements but rather an indispensable part of the plaintiff’s case.’” Colo.
Outfitters Ass’n, 2016 WL 1105363, at *2 (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 561 (1992)). Therefore, “each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the litigation.” Id.
In connection with this claim, Plaintiff alleges that on February 6, 8, and 9, 2014,
Defendant MSCS held meetings at which a majority or quorum of the Board was in
attendance, and that the Board took formal action at each of these meetings. Compl. [#1]
¶¶ 192, 194, 198. Plaintiff asserts that the February 6, 2014 meeting was held without
providing full notice to the public prior to the meeting. Id. ¶ 193.
During the February 8, 2014 meeting, Defendant MSCS took formal action with
respect to Mr. McCullough’s employment. Id. ¶¶ 122, 195. Although it was possible for
Defendant MSCS to include specific agenda information in the agenda for the meeting,
Defendant MSCS failed to include any specific information about the formal action it
intended to take with regard to Mr. McCullough’s employment. Id. ¶ 196. In other words,
Plaintiff asserts that the information contained on the agenda of the February 8, 2014
meeting did not contain sufficient information to inform an ordinary member of the
community that the termination of Mr. McCullough’s employment was likely to be discussed
at the meeting. Id. ¶ 197.
Further, during the February 9, 2014 meeting, Defendant MSCS took formal action
with respect to Plaintiff’s employment. Id. ¶ 199. Although it was possible for Defendant
MSCS to include specific agenda information in the agenda for the February 9, 2014
meeting, Defendant MSCS failed to include any specific information about the formal action
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it intended to take with regard to Plaintiff’s employment or her termination. Id. ¶ 200. Thus,
Plaintiff asserts that the information contained on the agenda of the February 9, 2014
meeting did not contain sufficient information to inform an ordinary member of the
community that the termination of Plaintiff’s employment was likely to be discussed at the
meeting. Id. ¶ 201. Plaintiff argues that because Defendant MSCS failed to comply with
the requirements of the OML for these three meetings, the actions the Board took at the
meetings were invalid. Id. ¶ 202-04.
Thus, in short, Plaintiff argues that Defendant MSCS violated the OML by failing to
provide adequate notice to the public of the meetings held on February 6, 8, and 9, 2014.
Citing to Pueblo School District No. 60 v. Colorado High School Activities Association, 30
P.3d 752 (Colo. App. 2000), Defendant MSCS argues that Plaintiff fails to demonstrate
standing because she has failed to allege an injury in fact in connection with the lack of
adequate notice for the public meetings. Motion [#25] at 11. In response, Plaintiff argues
that she was injured because the notice of these meetings failed to “sufficiently inform[ ] the
public of the nature of the business to be considered.” Response [#28] at 9 (quoting Town
of Marble v. Darien, 181 P.3d 1148, 1153 (Colo. 2008)).
However, neither party discusses the most recent decision from the Colorado Court
of Appeals analyzing standing with respect to the OML. In Wiesfield v. City of Arvada, 361
P.3d 1069 (Colo. App. 2015), the issue was whether the plaintiff sufficiently alleged an
injury in fact to a legally protected right in order to prove standing under the OML. The
Court of Appeals found that the plaintiff had a “legally protected right to have the city
council that represents him take action in an open manner rather than by secret ballot” and
that the plaintiff’s “lack of knowledge about how his council members voted is . . . precisely
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the type of injury contemplated” by the OML. Wiesfield, 361 P.3d at 1074. In coming to
this conclusion, the Court of Appeals distinguished its earlier decision in Pueblo:
In [Pueblo], a school district brought an action against a high school activities
association, alleging that the association failed to comply with the notice
provisions of the [OML] before conducting meetings in which it denied the
school district’s petition to change its sports classification. A division of this
court held that there was no injury in fact sufficient to convey standing
because the school district conceded that it had actual notice of the meetings
in question. In this case, by contrast, the injury that Weisfield complains of
has not been remedied by independent circumstances. He submitted an
affidavit to the district court stating that he does not know and has never
known which city council members cast which ballots during the four rounds
of secret ballot voting. Defendants do not claim that Weisfield has
independent knowledge of how each council member voted. Thus, unlike the
school district in Pueblo, Weisfield alleges an injury under the [OML] that
remains unresolved. . . . As we read Pueblo, the opinion merely notes that,
in some circumstances, simply referencing a statutory cause of action is
insufficient to demonstrate an injury in fact. Because the school district in
Pueblo had actual notice of the meetings, it was not injured by the
defendant’s failure to comply with statutory notice provisions. Under those
circumstances, where no injury resulted from the violation, merely
referencing a statutory cause of action was insufficient to confer standing.
In this case, however, Weisfield’s lack of knowledge about how the council
members voted is an injury under the [OML] that has not been remedied by
external circumstances.
Id. at 1074-75 (internal citations omitted).
Here, the allegations undisputedly demonstrate that Plaintiff had knowledge of and
attended the meetings held on February 6 and 8. Compl. [#1] ¶ 86 (“On February 5, 2014,
Mr. Solanki informed [Plaintiff] that he had decided to call a closed Board meeting for
February 6, 2014 to discuss her, and her relationships with her husband and Mr.
McCullough.”), ¶ 95 (“[Plaintiff] attended the Board meeting on February 6, 2014 and
answered the Board’s questions about her relationship with her husband and her
relationship with Mr. McCullough.”), ¶ 101 (“Following that meeting, the Board held another
closed meeting on Saturday, February 8, 2014 to discuss Ms. Douglas and her relationship
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with Mr. McCullough.”), ¶¶ 107-08 (“The School’s attorney, Eric Hall, was present at the
February 8, 2014 closed meeting” and “discussed the anti-nepotism policy with the Board
and [Plaintiff], and asked [Plaintiff] about the anti-nepotism policy.”), ¶ 112 (“During the
February 6 and February 8, 2014 meetings, [Plaintiff] was asked numerous . . . invasive
and personal questions about her marriage.”). Pursuant to Weisfield and Pueblo, Plaintiff’s
allegations that she had actual notice of and attended the meetings on February 6 and 8
are fatal to her OML claim in the absence of any other specified injury in fact. Even
assuming that Defendant MSCS failed to comply with the statutory notice requirements,
Plaintiff has not demonstrated how she was injured by this failure, and thus she lacks
standing to assert her OML claim with respect to those two meetings. Plaintiff’s conclusory
allegation to the contrary stating that she was injured because the public was not informed
of the meetings is simply insufficient to demonstrate an injury in fact. See Compl. [#1] ¶
205 (“As a consequence of Defendant MSCS’s invalid actions and illegal conduct, Plaintiff
has sustained significant injuries, damages, and losses.”).
The Court comes to the same conclusion with respect to the February 9 meeting,
but for different reasons, i.e., Plaintiff has not affirmatively made allegations sufficient to
demonstrate standing. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990)
(stating that standing cannot be inferred, and that a plaintiff who fails to allege facts
essential to show jurisdiction has no standing). Plaintiff provides allegations regarding the
asserted insufficiency of the notice of the meeting to the public. See Compl. [#1] ¶ 126
(“The School did not properly post the notice of this meeting as required by the Colorado
Open Meetings Law.”), ¶ 127 (“The notice of the February 9, 2014 Board meeting was not
posted at least 24 hours prior to the start of the meeting.”), ¶ 128 (“The notice of the
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February 9, 2014 Board meeting was not posted in a public place where it was accessible
to, or could be viewed by, members of the public.”), ¶ 129 (“Although it was possible for the
school to include specific agenda information in the notice of the February 9, 2014 Board
meeting, the notice did not include specific agenda information about the action that was
to occur at the meeting.”). However, Plaintiff does not allege whether she personally had
sufficiently advance knowledge of the February 9 meeting or whether she attended it. See
Colo. Outfitters Ass’n, 2016 WL 1105363, at *2 (stating that “plaintiffs bear the burden of
establishing standing”) (citing Raines v. Byrd, 521 U.S. 811, 818 (1997)); see also Pueblo,
30 P.3d at 753 (noting that the plaintiffs did “not claim they did not have notice of the . . .
meetings where the petition was denied”).
Plaintiff also provides allegations regarding an injury suffered in connection with the
February 9 meeting. See Compl. [#1] ¶ 130 (“During the February 9, 2014 meeting, the
Board decided to terminate [Plaintiff’s] employment.”), ¶ 131 “The Board made that decision
without regard for the School’s policies and State law.”). Colo. Rev. Stat. § 24–6–402(9)(a)
provides that “[a]ny person denied or threatened with denial of any of the rights that are
conferred on the public by [the OML] has suffered an injury in fact . . . .” The statute is
intended to “afford the public access to a broad range of meetings at which public business
is considered.” Colo. Off-Highway Vehicle Coalition v. Colo. Bd. of Parks & Outdoor
Recreation, 292 P.3d 1132, 1136 (Colo. App. 2012) (quoting Bd. of Cty. Comm’rs v. Costilla
Cty. Conservancy Dist., 88 P.3d 1188, 1192 (Colo. 2004)). “In light of this purpose, we
interpret the OML broadly to further the [Colorado] General Assembly’s intent to give
citizens a greater opportunity to meaningfully participate in the decision-making process
by becoming fully informed on issues of public importance.” Colo. Off-Highway Vehicle
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Coalition, 292 P.3d at 1136 (citing Bd. of Cty. Comm’rs, 88 P.3d at 1192).
However, Plaintiff does not allege whether the actions of the Board in failing to give
proper notice foreclosed her opportunity to meaningfully participate in the February 9, 2014
meeting, which resulted in her termination. See Colo. Outfitters Ass’n, 2016 WL 1105363,
at *2 (stating that “plaintiffs bear the burden of establishing standing”) (citing Raines, 521
U.S. at 818). Standing requires “a sufficient causal connection between the injury and the
conduct complained of.” Colo. Outfitters Ass’n, 2016 WL 1105363, at *2. In other words,
the injury must be “fairly . . . trace[able] to the challenged action of the defendant . . . .”
Lujan, 504 U.S. at 560 (citation omitted). “At the pleading stage, general factual allegations
of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we
presume that general allegations embrace those specific facts that are necessary to
support the claim.” Id. at 561 (citation and internal quotation marks omitted). Here,
although Plaintiff alleges that the actions taken at the February 9, 2014 meeting violated
the OML, she does not allege that, but for that meeting, she would not have been
terminated. The allegations do not support an inference that, had there been appropriate
public notice, there was a possibility that she or others could have participated in such a
way that she may not have been terminated. In other words, although she alleges that the
public was not informed of the meeting, she has not alleged how this caused the injury she
has actually alleged, i.e., her termination.

Thus, the Court finds that Plaintiff has

insufficiently alleged causation. See Colo. Outfitters Ass’n, 2016 WL 1105363, at *2
(stating that “plaintiffs bear the burden of establishing standing”) (citing Raines, 521 U.S.
at 818).
Accordingly, Plaintiff’s Claim Three pursuant to the OML is dismissed without
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prejudice. See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1216-17 (10th Cir. 2006)
(recognizing established rule that “where the district court dismisses for lack of jurisdiction
. . . , the dismissal must be without prejudice” because a court without jurisdiction lacks
power “to make any determination of the merits of the underlying claim”).5
D.

Colorado Lawful Activities Statute
Colorado’s Lawful Off-Duty Activities Statute (“LODAS”), Colo. Rev. State. §

24–34–402.5, is “an exception to an employer’s general right to terminate an at-will
employee without consequence.” Williams v. Rock–Tenn Servs., Inc., __ P.3d__, __, No.
14CA2329, 2016 WL 611666, at *1 (Colo. App. Feb. 11, 2016). LODAS “prohibits an
employer from terminating an employee ‘due to that employee’s engaging in any lawful
activity off the premises of the employer during nonworking hours.’” Id. (quoting Colo. Rev.
Stat. § 24–34–402.5(1)). “[T]he general purpose of section 24–34–402.5 is to keep an
employer’s proverbial nose out of an employee’s off-site off-hours business[.]” Williams,
2016 WL 611666, at *1 (quoting Coats v. Dish Network, L.L.C., 303 P.3d 147, 151 (2013),
aff’d, 350 P.3d 849 (2015)). Two statutory exceptions to this rule exist, however. An
employer is still permitted to terminate an employee if the activity at issue “(a) [r]elates to
a bona fide occupational requirement or is reasonably and rationally related to the
employment activities and responsibilities of a particular employee or a particular group of
employees, rather than to all employees of the employer; or (b) [i]s necessary to avoid a
conflict of interest with any responsibilities to the employer or the appearance of such a

5

To the extent Plaintiff believes she can provide additional allegations in order to
sufficiently allege standing with respect to the February 9, 2014 meeting, she may file a motion to
amend the Complaint on or before April 29, 2016.

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conflict of interest.”

Williams, 2016 WL 611666, at *1 (quoting Colo. Rev. §

24–34–402.5(1)).
Defendant MSCS argues that the school’s anti-nepotism policy and its application
to Plaintiff were permissible under each of the two statutory exceptions to LODAS. Motion
[#25] at 7. As noted previously, Plaintiff alleges that the Board’s citation to Defendant
MSCS’s anti-nepotism policy was a facade. The Court already found these allegations to
meet the minimum threshold of plausibility at this early stage of the case. Given these
allegations, the issue then becomes whether the Board could have legally terminated
Plaintiff’s employment under the LODAS even in the absence of the anti-nepotism policy.
While the parties allude to this issue, it is not argued or briefed in any material way outside
of the context of the anti-nepotism policy. See, e.g., Reply [#29] at 4. Thus, the Court finds
that Plaintiff’s LODAS claim should not be dismissed at this time.
Accordingly, the Motion [#25] is denied to the extent Defendant MSCS seeks
dismissal of Plaintiff’s LODAS claim.
IV. Conclusion
For the foregoing reasons, the Motions [#25] is GRANTED in part and DENIED in
part. The Motion is granted to the extent that claim three under the Colorado Open
Meetings Law, Colo. Rev. Stat. § 24–6–401, is dismissed without prejudice. The Motion
is denied in all other respects.
Dated April 15, 2016

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