Vazirabadi v. Boasberg et al

Filing 143

ORDER adopting 125 The March 6, 2019 Recommendation in its entirety. Denying 108 Plaintiff's November 30, 2018 Motion to Amend. Denying 118 Plaintiff's February 8, 2019 Motion to Amend. Adopting as modified 135 The March 28, 2019 Recommendation. Granting 116 Defendant's DPS's Motion for Summary Judgment. Overruled as moot 107 Plaintiff's Objection to Denial of Motion to Compel. Denied as moot 113 Plaintiff's Motion for Leave to File Surreply. Entered by Judge William J. Martinez on 6/25/2019. (afran)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1194-WJM-SKC
ALIREZA VAZIRABADI,
Plaintiff,
v.
DENVER PUBLIC SCHOOLS,
JOHN and JANE DOE 1 THROUGH 10,
JOHN and JANE DOE CORPORATIONS 1 THROUGH 10, and
OTHER JOHN DOE ENTITIES 1 THROUGH 10 all whose true names are unknown,
Defendants.

ORDER ON PENDING RECOMMENDATIONS AND MOTIONS

This matter is before the Court on two recommendations by United States
Magistrate Judge S. Kato Crews. (ECF Nos. 125 & 135.) In the first recommendation,
filed on March 6, 2019, Judge Crews recommended that this Court (1) deny Plaintiff
Alireza Vazirabadi’s (“Plaintiff” or “Vazirabadi”) Motion to Amend Second Amended
Complaint (“November 30, 2018 Motion to Amend”; ECF No. 108); and (2) deny
Plaintiff’s Second Motion to Amend Second Amended Complaint (“February 8, 2019
Motion to Amend”; ECF No. 118) (collectively, “Motions to Amend”). (“March 6, 2019
Recommendation”; ECF No. 125.)
In the second recommendation, filed on March 28, 2019, Judge Crews
recommended that this Court (1) grant Defendant Denver Public Schools’ (“DPS”)
Motion for Summary Judgment (“Motion for Summary Judgment”; ECF No. 116);
(2) dismiss with prejudice Plaintiff’s Second Amended Complaint (“Second Amended

Complaint”; ECF No. 67); (3) enter judgment in favor of DPS and against Plaintiff;
(4) dismiss without prejudice the John and Jane Doe Corporations 1 throug h 10 (“Doe
Corporations”); and (5) dismiss without prejudice the Other John Doe Entities 1 through
10 (“Doe Entities”). (“March 28, 2019 Recommendation”; ECF No. 135.)
The March 6, 2019 Recommendation and March 28, 2019 Recommendation are
incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
Plaintiff filed timely objections to the March 6, 2019 Recommendation (“March 12, 2019
Objection”; ECF No. 129) and the March 28, 2019 Recom mendation (“April 11, 2019
Objection”; ECF No. 136).
Also pending before the Court are Plaintiff’s (1) objection to Judge Crews’s
denial of his motion to compel (“Objection to Denial of Motion to Compel”; ECF
No. 107); and (2) motion seeking leave to file a surreply (“Motion for Leave to File
Surreply”; ECF No. 113).
For the reasons set forth below, the March 6, 2019 Recommendation is adopted
in its entirety, Plaintiff’s March 12, 2019 Objection is overruled, Plaintiff’s November 30,
2018 Motion to Amend is denied, Plaintiff’s February 8, 2019 Motion to Amend is
denied, the March 28, 2019 Recommendation is adopted as modified, Plaintiff’s April
11, 2019 Objection is overruled, DPS’s Motion for Summary Judgment is granted,
Plaintiff’s Objection to Denial of Motion to Compel is overruled as moot, and Plaintiff’s
Motion for Leave to File Surreply is denied as moot.
I. LEGAL STANDARD
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de
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novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” An objection to a recommendation is properly made if it is both timely and
specific. United States v. 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An
objection is sufficiently specific if it “enables the district judge to focus attention on those
issues—factual and legal—that are at the heart of the parties’ dispute.” Id. 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.” Fed. R. Civ. P. 72(b)(3). Here, Plaintiff filed a timely objection to the
March 6, 2019 Recommendation and to the March 28, 2019 Recom mendation. (See
ECF Nos. 129 & 136.) Therefore, the Court reviews the issues before it de novo,
except where otherwise noted.
In considering the recommendations, the Court is also mindful of Plaintiff’s pro
se status, and accordingly, reads his pleadings and filings liberally. Haines v. Kerner,
404 U.S. 519, 520–21 (1972); Trackwell v. United States, 472 F.3d 1242, 1243 (10th
Cir. 2007). The Court, however, cannot act as advocate for Plaintiff, who must still
comply with the fundamental requirements of the Federal Rules of Civil Procedure.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see also Ledbetter v. City of
Topeka, 318 F.3d 1183, 1188 (10th Cir. 2003).
II. BACKGROUND
The following factual summary is primarily drawn from the various motions
pending before the Court and documents submitted in support, as well as Plaintiff’s
Second Amended Complaint. These facts are undisputed unless attributed to a party.

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A.

Introduction
Plaintiff is a 55-year-old Iranian-American citizen residing in Aurora, Colorado.

(ECF No. 67 at 1, ¶ 1.) In 2015, DPS was recruiting two Process Improvement
Engineers (“PIE”) for its Risk Management Department. (ECF No. 116-1 at 1, ¶ 4.) On
August 3, 2015, Plaintiff applied for one of the positions after seeing DPS’s job posting
on a job listing website (“Job Posting”; id. at 11–12). (ECF No. 67 at 4, ¶ 19; see also
ECF No. 116-1 at 13–16.) Plaintiff was invited to several rounds of interviews, but DPS
chose to hire other candidates. (ECF No. 116-1 at 1–3.) T his lawsuit followed. (ECF
No. 1.)
B.

PIE Position Requirements
The Job Posting described “the purpose of the [PIE] position, expected

outcomes and results, and overview of areas of accountability,” as follows:
The Process Improvement Engineer (PIE) guides DPS
departments in collaborative process improvement and reengineering projects . . . . The PIE will lead or mentor
process owners through transformational business process
definition and re-engineering projects . . . .
In addition, the PIE will increase awareness of the value of
business process improvement throughout DPS, will train
and mentor DPS employees in the use of process
improvement tools, and will share business process
improvement best practices with other DPS initiatives.
(ECF No. 116-1 at 11.)
In describing “specific knowledge and qualifications required for the job,” the Job
Posting listed in pertinent part the following requirements:
•

Strong interpersonal and teamwork skills with the
ability to negotiate and influence others.
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•

Excellent [ ]verbal communication and presentation
skills.

•

Able to work collaboratively with cross functional
teams and with DPS employees at all levels of the
organization from executive leadership to line staff.

(Id. at 12.)
In detailing the “minimum education and experience required for the [PIE
position]”, the Job Posting provided that the applicant must have:
•

[A] Bachelor’s degree in Industrial Engineering.

•

At least 5 years of work experience in continuous
improvement or a related field, with a focus on
process design/re-engineering and Lean Six Sigma.

•

At least 5 years of work experience in cross-functional
project management.

(Id.)
C.

PIE Recruitment Process
When there is a vacancy for a PIE position, the job is posted by DPS, and

candidates submit an application and other materials, including resumes and cover
letters, through DPS’s online application system. (Id. at 2, ¶ 5; see also ECF No. 67
at 4, ¶ 19.)
During the relevant time period, Karen Johnson served as DPS’s Senior
Manager of Process Improvement and the hiring manager for PIEs. (ECF No. 116-1
at 1, ¶¶ 2, 4.) Johnson’s standard practice is to gather resumes and cover letters from
the online applications and select candidates f or phone interviews. (Id. at 2, ¶ 5.) After
conducting phone interviews, Johnson chooses candidates to advance to the following
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in-person interviews: (1) one panel interview with Johnson and the PIEs on her team;
and (2) one interview with DPS’s Director of Risk Management, Terri Sahli, who was
Johnson’s supervisor at the time. (Id.)
D.

Plaintiff’s Application for the PIE Position
Twenty-six individuals, including Plaintiff, applied for one or both of the two

vacant PIE positions using DPS’s online application system. (Id. at 2, ¶ 5; see also
ECF No. 117 at 27.) To apply, applicants had to complete a DPS online job application
(“Job Application”; ECF No. 116-3). (ECF No. 116-1 at 2–3, ¶¶ 5, 13.) T he Job
Application asked applicants a set of 13 questions, such as:
•

Are you eligible for employment in the United States?

•

Are you presently employed? If so, where?

•

Are you 18 years or older?

(See ECF No. 116-3.) In pertinent part, the Job Application asked applicants to indicate
whether they were “bilingual,” and if so, to identify the language. (Id. at 2.) In his Job
Application, Plaintiff answered that he was bilingual in “Farsi/Persian.” (Id.) Plaintiff
claims that this answer “identified his Iranian heritage/national origin.” (ECF No. 140
at 2, ¶ 3.) However, the Job Application did not ask for, and Plaintiff did not provide, his
age or national origin. (See ECF No. 116-3.)
After completing the Job Application, applicants were then asked to submit their
cover letters and resumes to DPS’s online application system. (ECF No. 116-1 at 2–3,
¶¶ 5, 13.) Plaintiff submitted both documents, but did not state his age, national origin,
or language proficiency in either document. (Id. at 13–16.) Johnson gathered the

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applicants’ resumes and cover letters, and selected nine candidates, including Plaintiff,
for phone interviews. (Id. at 2, ¶¶ 5, 7.)
E.

Phone Interviews
The phone interviews were conducted by Johnson and lasted from 45 to 60

minutes. (Id. at 32.) Johnson interviewed all nine candidates by phone between
August 28 and September 2, 2015. (Id. at 27, 32.) During the phone interviews,
Johnson asked each of the nine candidates the same set of questions, none of which
concerned the candidate’s age, national origin, or language proficiency. (See id.
at 21–26.)
Plaintiff’s phone interview took place on August 31, 2015. (Id. at 27, 31.) During
the interview, Johnson informed Plaintiff that there were two open PIE positions and
that he would “be considered for both.” (ECF No. 136 at 12, ¶ 7.1.) Plaintiff took this
comment as “positive feedback.” (Id.) In the interview, Plaintiff did not discuss his age,
national origin, or language proficiency with Johnson. (ECF No. 116-1 at 3, ¶ 13; see
also id. at 21–22; ECF No. 116-4 at 2; ECF No. 116-6 at 4, 10.)
F.

Panel Interviews
After conducting the phone interviews, Johnson chose six candidates, including

Plaintiff, for the in-person interviews. (ECF No. 116-1 at 2, ¶ 8.) The candidate pool
narrowed to five after one applicant declined to interview. (Id.)
The purpose of the panel interview was to test a candidate’s facilitation skills and
the essential functions of the PIE position, including: (1) the ability to achieve project
results working closely and collaboratively with executive sponsors, process owners,

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and project teams; (2) strong interpersonal and teamwork skills with the ability to
negotiate and influence others; and (3) the ability to work collaboratively with cross
functional teams and with School District employees at all levels of the organization
from executive leadership to line staff. (Id. at 2, ¶¶ 4, 8; see also id. at 11–12.) To test
these skills, the panel asked each candidate “to f acilitate a group discussion on the
topic of ‘things to do for a team building event in Denver [the “Facilitation Question”].’”
(Id. at 2, ¶ 8.; see also ECF No. 67 at 7, ¶ 24; ECF No. 117 at 25–26.)
Plaintiff’s panel interview took place on September 10, 2015. (ECF No. 67 at 7,
¶ 24; ECF No. 116-1 at 29.) Plaintiff’s interviewers consisted of Johnson and the three
incumbent PIEs—Andra Manczur, Katie Wolters, and Jeffrey Gwaltney. (ECF No. 1161 at 2, ¶ 8.) According to Plaintiff, all of the panel members “had 2-page interview
questionnaire[s],” on which they “continuously made hand-written notes” for the duration
of his panel interview. (ECF No. 117 at 13, ¶ 5; see also id. at 17–18.) In his panel
interview, Plaintiff did not discuss his age or national origin. (ECF No. 116-1 at 3, ¶ 13;
see also ECF No. 116-4 at 2; ECF No. 116-5 at 2, ¶ 7; ECF No. 116-6 at 7, 10.)
In her affidavit, Johnson described Plaintiff’s performance at his panel interview,
particularly in regard to how Plaintiff answered the Facilitation Question, as follows:
[Mr. Vazirabadi] performed poorly. Instead of facilitating a
group discussion, he dictated it. He was unable to make all
the Process Improvement team members feel he was
listening to their ideas, and rather than engaging us and
drawing out ideas about potential team building events in
Denver, he told us what we should do. Mr. Vazirabadi also
focused mostly on me instead of giving everyone on the
team equal attention. Although Mr. Vazirabadi had many
years of engineering experience, it was clear after the panel
interview that he was unlikely to meet the School District’s
needs and be successful in the PIE position.
8

(ECF No. 116-1 at 2–3, ¶ 9.)
Gwaltney’s account of how Plaintiff performed in his panel interview is similar to
Johnson’s description:
Mr. Vazirabadi did not do well in his interview. He
dominated the discussion rather than facilitate it, telling [the
interviewers] what we should do in Denver rather than elicit
our own ideas. It was more like a lecture than a shared
discussion, with little collaboration. Mr. Vazirabadi also
seemed to focus most of his attention on Ms. Johnson,
neglecting me and my colleagues Andra Manczur and Katie
Wolters. As someone who was working as a PIE, it was
apparent to me that Mr. Vazirabadi did not show the
facilitation skills needed for the job. To be successful, a PIE
must have strong interpersonal skills, be an excellent
listener, and have the ability to work collaboratively with
employees at every level of the School District.
(ECF No. 116-5 at 1, ¶ 4.)
Plaintiff disputes these accounts, asserting that Johnson and Gwaltney’s
“characterization of [his] facilitation performance is categorically false, untrue,
defamatory and extremely hurtful.” (ECF No. 117 at 13–14, ¶ 5.) In particular, Plaintif f
alleges that he “had excellent interactions and chemistry with all the panel members, for
the entire 60 minute interview.” (Id. at 13, ¶ 5.)
From his fillings, it is evident that one event in particular is of great importance to
Plaintiff. (See, e.g., ECF No. 1 at 4–5, ¶¶ 23, 25; ECF No. 67 at 7–8, ¶¶ 24, 29; ECF
No. 117 at 5, 13, ¶¶ 5, 9; ECF No. 118 at 86–87, 117–118; ECF No. 129 at 5, ¶ 10;
ECF No. 136 at 14, ¶ 7.7; ECF No. 140 at 2, ¶ 5.) T his “memorable and validating
moment” occurred right before Plaintiff left the panel interview room, when Gwaltney
asked Plaintiff: “do you like to be called Alireza or Ali?” (ECF No. 67 at 7, ¶ 24.)
9

Noticing that the other panel members were awaiting his response, Plaintiff responded
“Ali.” (Id.) Plaintiff asserts that Gwaltney’s question “proves the interview panel was
looking forward to [Plaintiff’s] immediate hiring” and that a “picture fails to capture”
these “last few exchanged words saying over 1000 words.” (Id.; ECF No. 136 at 18.)
In his response to the Motion for Summary Judgment, Plaintiff attached as an
exhibit a “Team Facilitation Narrative,” wherein Plaintiff describes in detail his version of
how his panel interview transpired when he was asked the Facilitation Question. (ECF
No. 117 at 25–26.) From his narrative, Plaintiff appears to be arguing that, contrary to
Johnson and Gwaltney’s assertions, his interview went well as the panel members
showed “sincere excitement,” laughed at his “funny joke[s],” and smiled approvingly.
(Id. (emphasis omitted).) In addition, Plaintiff appears to describe a more collaborative
environment, one where he did not dominate the discussion. (Id.)
In Johnson and Gwaltney’s affidavits, they discuss how two of the candidates,
Thach Nguyen and Ashley Schroeder (who were ultimately hired), significantly
outperformed Plaintiff in their panel interviews. (See ECF No. 116-1 at 3, ¶ 10; ECF
No. 116-5 at 2, ¶ 5.) In particular, they discuss how Nguyen and Schroeder
“demonstrated strong collaborative skills,” superior listening skills, and were able to
successfully facilitate a group discussion in a collaborative manner that involved the
entire group. (ECF No. 116-1 at 3, ¶ 10; ECF No. 116-5 at 2, ¶ 5.)
G.

Plaintiff’s Interview with Sahli
Plaintiff and each of the other candidates who participated in the panel

interviews also interviewed with Sahli. (ECF No. 116-1 at 2, ¶ 5; ECF No. 116-2 at 2,

10

¶¶ 7, 9.) Sahli’s “only role in the hiring process was to conduct a short one-on-one
interview with each finalist Ms. Johnson identified and then provide feedback to
Ms. Johnson,” but ultimately the “hiring decisions were made by Ms. Johnson.” (ECF
No. 116-2 at 2, ¶ 7.)
Plaintiff’s one-on-one interview with Sahli took place on September 15, 2015.
(ECF No. 116-1 at 29.) The following is Sahli’s account of the interview:
Mr. Vazirabadi came across as very sale-andentrepreneurial-oriented. PIEs do not work in isolation, and
their role is not to solicit business within the School District.
My impression was that Mr. Vazirabadi would not be able to
work collaboratively and consultatively in a team role. I also
did not feel that Mr. Vazirabadi would be able to work within
the standardized service model Ms. Johnson implements.
(ECF No. 116-2 at 2, ¶ 9.) During the interview, Sahli did not ask and Plaintiff did not
disclose his age, national origin, or proficiency in “Farsi/Persian.” (Id. at 2, ¶ 10; see
also ECF No. 116-4 at 2; ECF No. 116-6 at 7, 10.)
H.

Resumes of the Relevant Applicants
The resumes of the applicants also played an important role in Johnson’s hiring

decision. (See ECF No. 116 at 5, 15; ECF No. 116-1 at 2–3, ¶¶ 7, 12.) In regard to
Plaintiff, Johnson noted that he has a Bachelor of Science in Industrial Engineering
from the University of Wisconsin–Stout, and that he had over 20 years of engineering
experience in California and Colorado. (ECF No. 116-1 at 2, ¶ 7; see also id. at 15–16.)
However, Johnson also noted that since October 2013, Plaintiff’s only occupation had
been as an UberX Driver and that he had a “previous four-year gap in professional
employment while he served as a caregiver.” (Id. at 2, ¶ 7; see also id. at 15.) Plaintiff

11

was 52 years-old when he interviewed with DPS for the PIE positions. (ECF No. 140
at 3–4, ¶ 11.)
Nguyen has a Bachelor of Science in Materials Science and Engineering from
Cornell University’s College of Engineering. (ECF No. 116-1 at 18; see also ECF No.
116 at 5, ¶ 14.) At the time of his interviews, Nguyen had over six years of relevant
engineering experience with no gaps in his professional employment. (ECF No. 116-1
at 18; see also ECF No. 116 at 5, ¶ 14.) Nguyen was 28 years-old when DPS offered
him the PIE position. (ECF No. 67 at 3, ¶ 17.)
Schroeder has a Bachelor in Science in Industrial Engineering from the
University of Michigan’s College of Engineering. (ECF No. 116-1 at 19–20; see also
ECF No. 116 at 5, ¶ 14.) At the time of her interviews, Schroeder had over five years of
relevant engineering experience with no gaps in her professional employment. (ECF
No. 116-1 at 19–20; see also ECF No. 116 at 5, ¶ 14.) Schroeder was “in her thirties”
when DPS offered her the PIE position. (ECF No. 67 at 3, ¶ 17.)
I.

Hiring Decision
After the last panel interview concluded on September 21, 2015, the panel met

to rank the five candidates from one to five, with one being the most desirable
candidate, and five being the least desirable. (ECF No. 116-1 at 3, ¶ 11; see also id.
at 29–30.) Each panelist individually ranked the candidates in the exact same order:
Schroeder was the highest ranked candidate (with a ranking of one), Nguyen was the
second highest ranked candidate (with a ranking of two), and Plaintiff was the lowest

12

ranked candidate (with a ranking of five).1 (ECF No. 116-1 at 3, ¶ 11; ECF No. 116-5 at
2, ¶ 6; ECF No. 121-1 at 4–5.) Johnson recorded these ranking s onto a spreadsheet
(titled “Ranking Matrix”) and included the following comment about Plaintiff: “Good
experience, not a good team fit. Not sure if he would work well on a team.”2 (ECF No.
116-1 at 30; see also ECF No. 121-1 at 5.)
After this discussion, Johnson decided to offer the open PIE positions to Nguyen
and Schroeder. She determined that “[t]hey both had the requisite engineering
experience and displayed the best collaboration, leadership, interpersonal, and
teamwork skills.” (ECF No. 116-1 at 3, ¶ 12.) Schroeder and Nguyen accepted the
offers of employment and advanced to background screening with DPS’s Human
Resources Department. (Id.; see also id. at 40–43.) On September 23, 2015, Johnson
informed Plaintiff that DPS had decided to hire other candidates . (Id. at 39.)
Johnson asserts that at the time she made her hiring decision for the PIE
positions, she was not aware that applicants were required to complete the online Job
Application questions before submitting their resumes and cover letters, and therefore

1

Plaintiff argues that the “Ranking Matrix analysis proves Vazirabadi is [the] highest
ranked candidate” since he had the highest numerical ranking. (ECF No. 136 at 14, ¶ 7.8; see
also ECF No. 122 at 8–9, ¶ 5.) Plaintiff supports this assertion by pointing to the interview
questionnaires the panel members allegedly took notes on during his interview. (ECF No. 122
at 12–13.) On the questionnaires, there is an “Overall Ranking” index, in which a higher score
correlates with a higher ranking, and vice versa. (Id. at 13.) Thus, Plaintiff appears to argue
that since he had the highest numerical ranking of five, he was actually the highest ranked
candidate when compared to the other candidates who had lower numerical rankings—namely,
one through four. (See ECF No. 116-1 at 30.)
2

Plaintiff was not the only candidate the panel determined would not work well on their
team. (See ECF 116-1 at 30.) Similarly, the panel found that the third ranked candidate—who
had “[e]xcellent experience” as opposed to Plaintiff’s “[g]ood experience”—was “not a good
team fit.” (Id.)

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she was not aware of any applicant’s responses on these questions, including
responses to the bilingual question. (Id. at 3, ¶ 13.) Further, it is undisputed that
Plaintiff did not report or identify his age or national origin in his Job Application, in his
cover letter, on his resume, or otherwise at any stage of his interviews. (Id.; see also id.
at 13–16; ECF No. 116-3; ECF No. 116-4 at 2; ECF No. 116-6 at 7, 10.) Other than
identifying that he was bilingual in Farsi/Persian on the Job Application, Plaintiff did not
further indicate his bilingualism on any materials or at any other stage in the process.
(ECF No. 116-1 at 3, ¶ 13; see also id. at 13–16; ECF No. 116-3; ECF No. 116-4 at 2;
ECF No. 116-6 at 7, 10.) Thus, Johnson asserts that the “age, national origin, and
language proficiency of Mr. Vazirabadi, Mr. Nguyen, and Ms. Schroeder had no bearing
whatsoever on [her] hiring decisions for the PIE positions.” (ECF No. 116-1 at 3, ¶ 13.)
In sum, the only evidence to suggest that DPS knew of Plaintiff’s national origin
is that he reported being bilingual in “Farsi/Persian” on his Job Application. (ECF
No. 67 at 10–11; see also ECF No. 116-3 at 2; ECF No. 116-4 at 2; ECF No. 116-6
at 10.) Meanwhile, Plaintiff’s only allegation concerning his age is that Johnson and the
other interviewers inferred his age from his physical appearance. (See ECF No. 116-4
at 2; ECF No. 116-6 at 7.)
III. PROCEDURAL HISTORY
Plaintiff initiated this action on May 15, 2017. (ECF No. 1.) After DPS filed a
motion to dismiss Plaintiff’s complaint pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), Plaintiff filed his First Amended Complaint as a matter of course
on July 14, 2017. (ECF Nos. 22 & 26.) In his First Amended Complaint, Plaintiff

14

brought six claims against DPS and several others. (ECF No. 26.)
On July 28, 2017, DPS filed a motion to dismiss Plaintiff’s First Amended
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF
No. 29.) On March 30, 2018, this Court granted the motion in part and dismissed all of
Plaintiff’s claims except for his claim against DPS for national origin discrimination in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et
seq. (ECF No. 50.) On May 7, 2018, Plaintiff filed a motion to amend his First
Amended Complaint. (ECF No. 60.)
On May 11, 2018, United States Magistrate Judge Michael E. Hegarty held a
scheduling conference and set case deadlines to guide these proceedings. (ECF
No. 62.) Specifically, Judge Hegarty set a deadline of June 30, 2018, as the last day to
add parties or amend the pleadings (“June 30, 2018 Deadline”; ECF No. 63 at 11). Id.
During the Scheduling Conference, Judge Hegarty granted Plaintiff’s motion to file a
Second Amended Complaint, which was docketed on May 15, 2018. 3 (ECF Nos. 62 &
67.) In the Second Amended Complaint, Plaintiff brings action against DPS, the Doe
Corporations, the Doe Entities, and John and Jane Doe 1 throug h 10 (the “Doe
Individuals”) for national origin discrimination in violation of Title VII and for age
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. §§ 621 et seq. (ECF No. 67.)
During discovery, Plaintiff served a subpoena to produce on a non-party, Infor,
Inc. (“Infor”). (ECF No. 94.) Infor is a software company that licenses online job

3

On August 6, 2018, this case was reassigned to Judge Crews. (ECF No. 85.)

15

application software to DPS. (ECF No. 99 at 2.) DPS used Infor’s software for the
online Job Application, which included the question of whether the applicant is bilingual.
(ECF No. 97 at 2, ¶ 4.) With his subpoena to Infor, Plaintiff sought, among other
information, production of various data related to Infor’s development of the “bilingual
question” used by DPS. (Id.; see also ECF No. 94.) Infor refused to produce the
requested information, leading Plaintiff to file a motion to compel. (ECF No. 97 at 1,
¶ 1.) On November 6, 2018, Judge Crews held a hearing on the motion to compel.
(ECF No. 106.) After discussion and argument regarding the motion, Judge Crews
denied Plaintiff’s motion to compel. (Id.; see also ECF No. 109 at 24.)
As a result, Plaintiff filed his Objection to Denial of Motion to Compel, which is
currently pending before the Court. (ECF No. 107.) Infor subsequently responded to
Plaintiff’s objection. (ECF No. 111.) On December 5, 2018, Plaintiff filed a surreply
(ECF No. 112) to Infor’s response and a Motion for Leave to File Surreply (ECF
No. 113), which is currently pending before the Court. (Id.)
Five months after the June 30, 2018 Deadline for amending pleadings and
adding parties, Plaintiff filed the November 30, 2018 Motion to Amend. (ECF No. 108.)
While that motion was still pending before the Court, Plaintiff filed the February 8, 2019
Motion to Amend. (ECF No. 118.) Through these Motions to Amend, Plaintiff seeks to
add four new parties: (1) Infor; (2) Charles Philips (Infor’s CEO), in his individual
capacity; (3) Johnson, in her individual capacity; and (4) Gwaltney, in his individual
capacity. (ECF Nos. 108 & 118.) In addition, Plaintiff seeks to add various claims
against DPS and these four parties for conspiracy, invasion of privacy, and conspiracy
to violate Title VII. (See ECF Nos. 108 & 118.) Judge Crews reviewed the November
16

30, 2018 Motion to Amend and the February 8, 2019 Motion to Amend, and issued his
March 6, 2019 Recommendation. (ECF No. 125.)
On January 14, 2019, DPS moved for summary judgment, arguing that the
record clearly establishes that Plaintiff’s age and national original did not play a role in
DPS’s hiring decision. (ECF No. 116.) Judge Crews reviewed DPS’s Motion for
Summary Judgment and issued his March 28, 2019 Recommendation. (ECF No. 135.)
IV. MOTIONS TO AMEND SECOND AMENDED COMPLAINT
In the March 6, 2019 Recommendation (referred to as the “Recommendation” for
the remainder of this Section IV), Judge Crews recommended that Plaintiff’s November
30, 2018 Motion to Amend (ECF No. 108) and February 8, 2019 Motion to Amend (ECF
No. 118) be denied. (ECF No. 125.) Plaintiff’s March 12, 2019 Objection (referred to
as the “Objection” for the remainder of this Section IV) disputes various portions of the
Recommendation. (ECF No. 129.) After discussing the controlling law, the Court will
address Judge Crews’s findings and Plaintiff’s objections in turn.
A.

Standard for Modifying the Scheduling Order After the Deadline
“After a scheduling order deadline, a party seeking leave to amend must

demonstrate (1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4) and
(2) satisfaction of the Rule 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat.
Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014). If a plaintiff fails to satisfy either
factor—(1) good cause or (2) Rule 15(a)—then the plaintiff is not entitled to have the
scheduling order modified. Id. at 1241.
Rule 16 of the Federal Rules of Civil Procedure provides that a scheduling order

17

“may be modified only for good cause and with the judge’s consent.” Fed. R. Civ. P.
16(b)(4). “Good cause” under this rule “is much different than the more lenient
standard contained in Rule 15(a). Rule 16(b) does not f ocus on the bad faith of the
[plaintiff], or the prejudice to the opposing party.” Colo. Visionary Acad. v. Medtronic,
Inc., 194 F.R.D. 684, 687 (D. Colo. 2000). Rather, Rule 16(b) f ocuses on the “diligence
of the party seeking leave to modify the scheduling order to permit the proposed
amendment.” Id.
In practice, this standard requires the plaintiff “to show the scheduling deadlines
cannot be met despite [the plaintiff’s] diligent efforts.” Gorsuch, 711 F.3d at 1240
(internal quotation marks omitted). “Rule 16’s good cause requirement may be
satisfied, for example, if a plaintiff learns new information through discovery or if the
underlying law has changed.” Id. “If the plaintiff knew of the underlying conduct but
simply failed to raise [the] claims, however, the claims are barred.” Id. Moreover,
district courts are “afforded wide discretion” in their application of the good cause
standard under Rule 16(b). Bylin v. Billings, 568 F.3d 1224, 1231 (10th Cir. 2009).
B.

The November 30, 2018 Motion to Amend
1.

The Recommendation

In the Recommendation, Judge Crews found that Plaintiff had not sustained his
burden under Rule 16(b)(4) as he had failed to establish that good cause supports
modifying the Scheduling Order. (ECF No. 125 at 6–9.) As a result, Judge Crews
recommended that Plaintiff’s November 30, 2018 Motion to Amend be denied. (Id.
at 13.)

18

At the outset, the Recommendation noted that the November 30, 2018 Motion to
Amend—wherein Plaintiff seeks to add Infor and its CEO—was filed 153 days after the
June 30, 2018 Deadline for amending pleadings and adding parties. (Id. at 6.) Plaintiff
argued that he had only learned of Infor’s involvement in this case after obtaining
certain discovery. (Id.; see also ECF No. 108 at 2, ¶ 4.) The Recommendation found
that Plaintiff’s argument was not persuasive because Plaintiff had acquired this
information on August 16, 2018—106 days before Plaintiff filed his November 30, 2018
Motion to Amend. (ECF No. 125 at 6.)
The Recommendation noted that after learning of Infor’s alleged involvement in
the case on August 16, 2018, Plaintiff chose to undertake the following actions
concerning the software company:
Vazirabadi’s subpoena to Infor [was served on] August 20,
2018 [ECF No. 94 at 2]; he filed a motion to compel Infor to
comply with the subpoena on September 24, 2018 [ECF No.
97]; the [c]ourt held a hearing on the motion to compel, and
denied it, on November 6, 2018 [ECF No. 106]; and,
Vazirabadi filed an objection to this [c]ourt’s denial of the
motion to compel on November 19, 2018 [ECF No. 107].
(ECF No. 125 at 6–7.) Judge Crews emphasized that “[d]espite all of this activity
regarding Infor from August 16 to November 19, 2018, Vazirabadi did not seek to add
Infor (or its CEO) as a defendant to this case until November 30, 2018.” (Id. at 7.)
Judge Crews noted that instead of seeking to amend his complaint “as soon as
he became aware of the underlying facts described in his motion[ ], Vazirabadi waited
several months to make his request.” (Id. at 8.) Indeed, Judge Crews found that the
“timing, facts, and course of this litigation suggest that Vazirabadi knew the
circumstances giving rise to his purported amendments far earlier than when he chose
19

to file the [November 30, 2018 Motion to Amend].” (Id.) For these reasons, Judge
Crews determined that Plaintiff had not sustained his burden under Rule 16(b)(4) and
thus recommended that Plaintiff’s November 30, 2018 Motion to Amend be denied. (Id.
at 9, 13.)
2.

Plaintiff’s Objections

In the Objection, Plaintiff concedes that he had learned of Infor’s existence on
August 16, 2018, but nonetheless argues that he exercised “100% Due Diligence” in
filing his November 30, 2018 Motion to Amend since he sought discovery “11 days”
after learning of Infor’s alleged involvement in the case. (ECF No. 129 at 3, ¶ 5
(emphasis in original).)
In support, Plaintiff highlights how he promptly served a subpoena on Infor, and
followed with a motion to compel disclosure on September 24, 2018. (Id.) Plaintiff also
discusses how his motion to compel was subsequently denied by Judge Crews, and
how his objection to that ruling is still pending before this Court. (Id. at 3, ¶¶ 5–6.)
3.

Analysis

The Court finds Plaintiff’s arguments to be wholly unconvincing. Rule 16(b)’s
“good cause” standard “requires the [plaintiff] to show the scheduling deadlines cannot
be met despite [the plaintiff’s] diligent efforts.” Gorsuch, 711 F.3d at 1240 (internal
quotation marks omitted). Here, Plaintiff does not attempt to satisfy that standard.
Instead, he argues that he should be allowed to add Infor and its CEO as parties to this
action, even though the deadline for adding parties has long elapsed, because he
diligently sought discovery from Infor. This clearly does not make the requisite showing

20

that the scheduling deadline could not have been met despite Plaintiff’s diligent efforts.
Indeed, Plaintiff’s actions in seeking discovery from Infor supports the finding
that Plaintiff has failed to demonstrate good cause since Plaintiff strategically chose to
seek non-party discovery from Infor for over three months, but did not attempt to add it
as a party. (See ECF No. 125 at 7 (“Despite all of this activity regarding Infor from
August 16 to November 19, 2018, [Plaintiff] did not seek to add Infor (or its CEO) as a
defendant to this case until November 30, 2018”).) Plaintiff made the tactical choice to
seek discovery from Infor and not add them as a party. It was only when Plaintiff had
exhausted his discovery avenues in regard to Infor that he attempted to add it as a
party. See Rosenzweig v. Azurix Corp., 332 F.3d 854, 865 (5th Cir. 2003) (where
plaintiffs “deliberately chose to delay amending their complaint, . . . a busy court need
not allow itself to be imposed upon by the presentation of theories seriatim”) (internal
quotations marks ommitted).
The Court recognizes that the good cause requirement may be satisfied “if a
plaintiff learns new information through discovery.” Gorsuch, 711 F.3d at 1240. At first
glance, it would appear that Plaintiff’s November 30, 2018 Motion to Amend could
potentially fall within this category as he learned about Infor through discovery on
August 16, 2018, after the June 30, 2018 Deadline for amending pleadings. However,
Plaintiff did not file his motion to amend right away or in a timely fashion—nor did
Plaintiff exercise diligence in his efforts to amend his complaint. Instead, he waited 106
days before filing his November 30, 2018 Motion to Amend. When a “plaintiff knew of
the underlying conduct but simply failed to raise [the] claims, . . . the claims are barred.”
Id. Here, Plaintiff knew of the underlying conduct concerning his claims against Infor
21

and its CEO on August 16, 2018, but he failed to raise those claims until November 30,
2018. As a result, Plaintiff is not entitled to leave in order to bring those claims.
The Court also acknowledges that Plaintiff is proceeding pro se, but even then,
he is held to the same rules of procedure that govern other litigants. See Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (“[t]his court has
repeatedly insisted that pro se parties follow the same rules of procedure that govern
other litigants”). Moreover, the Court frankly finds the record to be entirely devoid of
anything that could lend credence to the notion that g ood cause exists for allowing
Plaintiff to amend his complaint.
In sum, Plaintiff has failed to show that the June 30, 2018 Deadline could not
have been met despite his diligent efforts. See Gorsuch, 711 F.3d at 1240. Rather, the
record clearly shows that Plaintiff knew of the information underlying his November 30,
2018 Motion to Amend over 100 days before he attempted to amend his complaint. As
a result, Plaintiff has failed to satisfy Rule 16(b)’s good cause inquiry and therefore he
is not entitled to leave to amend.4 See id. at 1240–41. Accordingly, the Court adopts
the Recommendation to the extent it denies Plaintiff’s November 30, 2018 Motion to
Amend.
C.

February 8, 2019 Motion to Amend
1.

The Recommendation

4

In the Recommendation, Judge Crews found that Plaintiff’s November 30, 2018 Motion
to Amend should also be denied because Plaintiff had failed to satisfy Rule 15(a). (ECF
No. 125 at 9–12.) Because the Court finds that no good cause exists for amending the
Scheduling Order, it need not consider the Recommendation’s findings, nor Plaintiff’s
objections, concerning whether Plaintiff has satisfied Rule 15(a). See Gorsuch, 771 F.3d
at 1240–41.

22

In the Recommendation, Judge Crews found that Plaintiff had not sustained his
burden under Rule 16(b)(4) as he had failed to demonstrate that good cause supports
modifying the Scheduling Order. (ECF No. 125 at 6–9.) As a result, Judge Crews
recommended that Plaintiff’s February 8, 2019 Motion to Amend be denied. (Id. at 13.)
Judge Crews highlighted how Plaintiff’s February 8, 2019 Motion to
Amend—wherein Plaintiff seeks to add Johnson and Gwaltney—was filed 223 days
after the June 30, 2018 Deadline for amending pleadings and adding parties. (Id. at 6.)
Judge Crews then discussed how Plaintiff seeks to add Johnson and Gwaltney based
on their affidavits submitted in support of DPS’s Motion for Summary Judgment on
January 14, 2019, wherein they averred that Plaintiff performed poorly in his panel
interview. (Id. at 7.) Judge Crews noted, however, that the “information contained in
Johnson and Gwaltney’s affidavits is not new” as “it has always been DPS’s position
that Plaintiff performed poorly during his [panel] interview.” (Id. at 7 (citing ECF No. 53
at 4–5, ¶ 24).)
Judge Crews noted that Plaintiff’s Second Amended Complaint, which was
docketed on May 15, 2018, “refers to both Johnson and Gwaltney,” discusses how
“they were part of a team of interviewers who interviewed Vazirabadi, and that he ‘did
poorly’ during a part of his interview.” (ECF No. 125 at 7 (quoting ECF No. 67 at 4, 17
¶ 18).) Judge Crews further observed that Plaintiff’s Second Amended Complaint “even
alleges that DPS ‘falsified [Vazirabadi’s] panel interview performance’ by stating that he
‘did poorly’ during a part of his interview.” (ECF No. 125 at 7 (quoting ECF No. 67 at 4
¶ 18).) The Recommendation found that “[d]espite his knowledge of Johnson and
Gwaltney since at least May 15, 2018, including their role in his interview and DPS’s
23

position that he ‘did poorly’ during a part of the interview in which Johnson and
Gwaltney participated, Vazirabadi waited over eight months before seeking to add
these individuals as named defendants to this case.” (ECF No. 125 at 7–8.)
Judge Crews noted that instead of seeking to amend his complaint “as soon as
he became aware of the underlying facts described in his motion[ ], Vazirabadi waited
several months to make his request.” (Id. at 8.) Indeed, Judge Crews found that the
“timing, facts, and course of this litigation suggest that Vazirabadi knew the
circumstances giving rise to his purported amendments far earlier than when he chose
to file the [February 8, 2019 Motion to Amend].” (Id.) For all these reasons, Judge
Crews found that Plaintiff failed to show good cause to modify the Scheduling Order
and therefore recommended Plaintiff’s February 8, 2019 Motion to Amend be denied.
(Id. at 9, 13.)
2.

Plaintiff’s Objections

In the Objection, Plaintiff acknowledges that his February 8, 2019 Motion to
Amend was filed 223 days after the deadline set forth in the Scheduling Order, but
argues that there is good cause to amend the Scheduling Order because Johnson and
Gwaltney did not file their affidavits until January 14, 2019. (ECF No. 129 at 4, ¶ 10.)
Plaintiff alleges that Johnson and Gwaltney’s affidavits are “totally false, factually
contradictory, solidly incriminating that domino-like, factually substantiates all of
Vazirabadi’s claims that indeed: (a) Vazirabadi was highest ranked hiring candidate,
(b) defendants [sic] did not hire him despite his highest ranking,” and so on. (Id. at 4–6
(emphasis in original).)

24

Plaintiff also asserts that Judge Crews erroneously “did not consider
Vazirabadi’s most important, substantive and consequential reply (DOC # 126)
against [DPS’s Response to his February 8, 2019 Motion to Amend].” (ECF No. 129
at 1, ¶ 3 (emphasis in original); see also id. at 2, 6 ¶¶ 4, 11.) Lastly, Plaintiff claims that
he “presented many good causes [in] previous filed documents, such as DOCS#s 108,
117, 118, 122 and most importantly: DOC# 126.” (Id. at 6, ¶ 11 (emphasis in
original).)
3.

Analysis

The Court finds Plaintiff’s arguments again to be wholly without merit. While the
Court recognizes that the good cause requirement may be satisfied “if a plaintiff learns
new information through discovery,” Gorsuch, 711 F.3d at 1240, it is abundantly clear
that Plaintiff’s February 8, 2019 Motion to Amend is not based on new information as
Plaintiff appears to contend. Rather, Plaintiff seeks to amend his complaint based on
information that Plaintiff knew about long before he initiated this action on May 15,
2017—namely, Johnson and Gwaltney’s statements that Plaintiff performed poorly in
his panel interview.
Indeed, Plaintiff attached as an exhibit to his February 8, 2019 Motion to Amend
the Position Statement DPS submitted to the Equal Employment Opportunity
Commission on February 26, 2017. 5 (See ECF No. 118 at 144–49.) In the Position
Statement, DPS discusses much of the information included in Johnson and Gwaltney’s

5

Plaintiff has included DPS’s Position Statement in numerous filings. (See, e.g., ECF
No. 26 at 35, 38; ECF No. 108-1 at 66–71; ECF No. 117 at 27–32.) Indeed, excerpts of the
Position Statement were even included in his original complaint. (ECF No. 1 at 26, 28.)

25

affidavits. (Compare id., with ECF No. 116-1 at 1–4, and ECF No.116-5.) In pertinent
part, the Position Statement discusses how Plaintiff was interviewed by Johnson and
Gwaltney and details how Plaintiff “performed poorly” in his panel interview. (ECF
No. 118 at 144–46.) Notably, the section discussing Plaintiff’s poor performance in his
panel interview is quite similar to the corresponding sections in Johnson and Gwaltney’s
affidavits. (Compare id. at 145–46, with ECF No. 116-1 at 2–3, ¶ 9, and ECF No. 116-5
at 1, ¶ 4.) Thus, it is beyond dispute that Plaintiff’s February 8, 2019 Motion to Amend
is not based on new information.
Moreover, the Court notes that during Gwaltney’s deposition on August 16, 2018,
Plaintiff discussed how he was considering bringing claims against Gwaltney in this
action. (See ECF No. 122 at 15.) Yet, Plaintiff waited another 176 days after that date,
even though the deadline for adding parties had elapsed, to seek leave to add
Gwaltney to this lawsuit. (ECF No. 118.)
Plaintiff appears to acknowledge to a certain extent that the information
contained in Johnson and Gwaltney’s affidavits is not new information, arguing instead
that “neither [Johnson or Gwaltney’s] depositions, nor [DPS’s] previous filings[,] ever
made such direct and brazen false statements against Vazirabadi’s 9/10/2015 panel
interview performance.” (Id. at 4, n.1 (emphasis in original).) The Court finds this
argument to be unpersuasive. It is immaterial whether the description of Plaintiff’s
performance at the panel interview was more direct in the affidavits than in DPS’s
previous filings. What matters is that Plaintiff knew of the underlying conduct
surrounding his belated claims against Johnson and Gwaltney, and simply failed to

26

raise them until it was too late. See Gorsuch, 711 F.3d at 1240.
In regard to Plaintiff’s allegation that Johnson and Gwaltney’s affidavits
substantiate all of his claims, the Court finds such an assertion to be completely without
support. Rather, after reviewing the affidavits and the relevant pleadings, the Court
finds the opposite to be true. Indeed, Plaintif f himself previously noted in his Response
to DPS’s Motion for Summary Judgment the “devastating effect” that these affidavits
have on his claims. (ECF No. 117 at 4, ¶ 6.)
As to Plaintiff’s contention that Judge Crews erroneously failed to consider his
Reply to DPS’s Response to his February 8, 2019 Motion to Amend, the Court finds
such an argument to be unpersuasive. (See ECF No. 129 at 1, ¶ 3; see also id. at 2, 6
¶¶ 4, 11.) At the March 15, 2019 status conf erence, Judge Crews explained to Plaintiff
that he did not have Plaintiff’s Reply when the Recommendation was issued. (See ECF
No. 133 at 12–13.) Judge Crews also explained that he did not need to wait for the
Reply before issuing his order. (Id.) This explanation was reitterated in Judge Crews’s
Recommendation. (See ECF No. 125 at 1, n.1 (citing D.C.Colo.LCivR. 7.1 (nothing
“precludes a judicial officer from ruling on a motion at any time after it is filed”)).)
Nonetheless, the Court has decided to consider Plaintif f’s Reply to determine
whether it would have any bearing on the disposition of his February 8, 2019 Motion to
Amend. In the Reply, Plaintiff discusses how he believes the Court is awaiting the
outcome of his appeal in a very similar case, Vazirabadi v. Denver Health & Hosp.
Auth., No. 17-CV-01737-RBJ (the “Denver Health lawsuit”). (ECF No. 126 at 1, ¶ 2;
see also id. at 2, 4.) In the Denver Health lawsuit, Plaintiff brought claims pursuant to

27

Title VII and the ADEA against Denver Health and Hospital Authority and others for age
and national origin discrimination after the hospital did not hire him. (Denver Health,
see ECF No. 112.)
On October 11, 2018, United States District Judge R. Brooke Jackson denied
Plaintiff’s motion for leave to file an amended complaint and granted the defendants’
motion for summary judgment. (Id.) The next day, Plaintiff appealed Judge Jackson’s
order, and that appeal is currently before the Tenth Circuit. (Denver Health, ECF
No. 115.) Plaintiff appears to argue that since Johnson and Gwaltney’s affidavits were
filed after he appealed, the Court should allow him to amend his complaint. (ECF
No. 126 at 2.)
The rest of the Reply addresses Plaintiff’s perceived inconsistencies regarding
when the panelist used their interview notes, when these notes were discarded, and
whether a candidate ranked with the highest numerical number is actually the topranked candidate. (Id. at 2–4.) The Court finds the arguments contained in Plaintiff’s
Reply to be meritless and concludes that they have no bearing on the disposition of
Plaintiff’s February 8, 2019 Motion to Amend. As for the other documents that Plaintiff
cites to demonstrate good cause—namely, ECF Nos. 108, 117, 118, & 122—the Court
has reviewed these filings de novo and has likewise found that they do not demonstrate
the requisite showing of good cause needed for this Court to modify the Scheduling
Order pursuant to Rule 16(b).
In sum, Plaintiff has failed to show that the June 30, 2018 Deadline could not
have been met despite his diligent efforts. See Gorsuch, 711 F.3d at 1240. Rather, it

28

is evident from the record that Plaintiff knew of the information underlying his February
8, 2019 Motion to Amend before he initiated this action on May 15, 2017. (See ECF
No. 118 at 144–49.) As a result, Plaintiff has failed to satisfy Rule 16(b)’s good cause
inquiry and therefore Plaintiff is not entitled to leave to amend.6 See Gorsuch, 711 F.3d
at 1240–41. Accordingly, the Court adopts the Recommendation to the extent is denies
Plaintiff’s February 8, 2019 Motion to Amend.
D.

Rule 11 Sanctions
In its Response to Plaintiff’s February 8, 2019 Motion to Amend, DPS requested

that the Court impose Rule 11 sanctions against Plaintiff and grant DPS its costs,
including reasonable attorney fees, incurred in responding to the motion. (ECF No. 124
at 10–11.) In support, DPS noted the f ollowing: “Vazirabadi already has one motion to
amend the second amended complaint before this Court, and summary judgment is
fully briefed. Yet, Vazirabadi has filed another motion nearly identical to the one
pending before this Court that largely responds to [DPS’s Motion for Summary
Judgment].” (Id. at 11.) DPS also discussed how Plaintiff “clearly understands” that his
Motions to Amend were untimely, and that the information included in his February 8,
2019 Motion to Amend was “not new at all.” (Id.)
Judge Crews entertained DPS’s request and determined that, although Plaintiff’s
Motions to Amend were “without merit,” he would not impose Rule 11 sanctions against

6

In the Recommendation, Judge Crews found that Plaintiff’s February 8, 2019 Motion to
Amend should also be denied because Plaintiff had failed to satisfy Rule 15(a). (ECF No. 125
at 9–12.) Because the Court has found that no good cause exists for amending the Scheduling
Order, it need not consider the Recommendation’s findings, nor Plaintiff’s objections,
concerning whether Plaintiff has satisfied Rule 15(a). See Gorsuch, 771 F.3d at 1240–41.

29

Plaintiff. (ECF No. 125 at 12.) Judge Crews, however, informed Plaintiff that he could
be sanctioned in the future if he continues to file motions in this case that lack proper
legal support. (Id.)
The Court notes that Judge Crews’s decision regarding Rule 11 sanctions was
non-dispositive and therefore it most likely raises a Rule 72(a) issue. However, neither
party has objected to Judge Crews’s decision to not impose sanctions against Plaintiff.
(See ECF Nos. 129 & 134.) Thus, even if Judge Crews’s decision regarding sanctions
raises a Rule 72(b) issue, the Court would review Judge Crews’s Rule 11 analysis for
clear error. See 2121 East 30th St., 73 F.3d at 1060 (“[A] party’s objections to the
magistrate judge’s report and recommendation must be both timely and specific to
preserve an issue for de novo review by the district court”) (emphasis added).
The Court finds that Judge Crews’s analysis concerning Rule 11 sanctions was
thorough and sound, and that there is no clear error on the f ace of the record. See
Bertolo v. Benezee, 2013 WL 1189508, at *1 (D. Colo. Mar. 22, 2013) (“In the absence
of a timely and specific objection, ‘the district court may review a magistrate . . .
[judge’s] report under any standard it deems appropriate’”) (quoting Summers v. Utah,
927 F.2d 1165, 1167 (10th Cir. 1991), aff’d, 601 F. App’x 636 (10th Cir. 2015).
Moreover, the Court would not grant DPS’s request in the first place because a
request for Rule 11 sanctions “must be made separately from any other motion”—which
DPS has not done. Fed. R. Civ. P. 11(c)(2). Rule 11 also requires proof that DPS first
gave Plaintiff warning of its intent to seek such sanctions and twenty-one days to
withdraw the offending filing. See Fed. R. Civ. P. 11(c)(2). DPS has not offered such

30

proof. (See ECF No. 124 at 10–12.) Thus, even if the Court were to find that Judge
Crews’s decision regarding sanctions implicates Rule 72(b), the Court would still adopt
the Recommendation and not impose Rule 11 sanctions upon Plaintiff.
V. MOTION FOR SUMMARY JUDGMENT
In the March 28, 2019 Recommendation (referred to as the “Recommendation”
for the remainder of this Section V), Judge Crews recommended that DPS’s Motion for
Summary Judgment (ECF No. 116) be granted and Plaintiff’s Second Amended
Complaint (ECF No. 67) be dismissed with prejudice. (ECF No. 135.) In his April 11,
2019 Objection (referred to as the “Objection” for the remainder of this Section V),
Plaintiff disputes various portions of the Recommendation. (ECF No. 136.) After
discussing the controlling law, this Court will address Judge Crews’s findings and
Plaintiff’s objections in turn.
A.

National Origin and Age Discrimination
1.

Legal Standard

Plaintiff claims he was not hired because of his national origin and age, and
brings claims under Title VII and the ADEA. (ECF No. 67 at 10–12.) Since Plaintif f
offers no direct evidence of impermissible discrimination, the burden-shifting framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs his claims.
The McDonnell Douglas framework involves a three-step analysis. See Garrett
v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). “First, the plaintif f must
prove a prima facie case of discrimination. If the plaintiff satisfies the prima facie
requirements, the defendant bears the burden of producing a legitimate,

31

nondiscriminatory reason for its action.” Id. “If the defendant makes this showing, the
plaintiff must then show that the defendant’s justification is pretextual.” Kendrick v.
Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000).
To establish a genuine issue of material fact as to pretext, Plaintiff “must
demonstrate that [DPS’s] ‘proffered non-discriminatory reason is unworthy of belief.’”
Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ. , 595 F.3d 1126, 1134 (10th Cir. 2010)
(quoting Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1065 (10th Cir. 2009)).
Plaintiff “can meet this standard by producing evidence of ‘such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in [DPS’s] prof fered
legitimate reasons for its action that a reasonable factfinder could rationally find them
unworthy of credence and hence infer that [DPS] did not act for the asserted
non-discriminatory reasons.” Reinhardt, 595 F.3d at 1134 (quoting Pinkerton, 563 F.3d
at 1065); see also Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010).
If Plaintiff “advances evidence upon which a factfinder could conclude that [DPS’s]
allegedly nondiscriminatory reasons for the employment decisions are pretextual, the
court should deny summary judgment.” Reinhardt, 595 F.3d at 1134.
2.

Prima Facie Case of Discrimination

Judge Crews determined that Plaintiff failed to prove even a prima facie case of
age or national origin discrimination. (See ECF No. 135 at 7–11.) Plaintiff objects to
this finding. (See ECF No. 136 at 3–4.) However, because the Court concludes that
Plaintiff has not made a showing of pretext, the Court need not resolve Plaintiff’s
objections regarding his prima facie case.

32

3.

DPS’s Legitimate, Non-Discriminatory Reasons for Not Hiring Plaintiff

In the Recommendation, Judge Crews determined that DPS had satisfied its
burden in providing legitimate, non-discriminatory reasons for not hiring Plaintiff. (ECF
No. 135 at 11.) In particular, the Recommendation noted that DPS claims it did not hire
Plaintiff because: “(1) he demonstrated in his panel interview that he did not possess
the requisite facilitation skills for the PIE position; (2) he had gaps in his professional
employment history; [and] (3) [DPS] determined that the candidates who were selected
were more qualified.” (Id.)
It is unclear whether Plaintiff objects to Judge Crews’s finding that DPS had
satisfied its burden in providing legitimate, non-discriminatory reasons for not hiring
Plaintiff. (See ECF No. 136.) The Court notes, however, that at this stage, DPS need
only “explain its actions against the plaintiff in terms that are not facially prohibited by
Title VII.” Jones v. Denver Post Corp., 203 F.3d 748, 753 (10th Cir. 2000) (internal
citations omitted). Having proferred these justifications, the Court finds that DPS has
met its burden. As a result, the burden returns to Plaintif f to demonstrate that DPS’s
justifications are pretextual.
4.

Pretext

In the Recommendation, Judge Crews concluded that even if Plaintiff had
satisfied the first step of the McDonnell Douglas framework by proving a prima facie
case of discrimination, Plaintiff’s claims would still fail under the framework’s third step
as he had failed to show that DPS’s justifications for not hiring him were pretextual.
(ECF No. 135 at 11.) In particular, Judge Crews found that Plaintiff “has offered no
competent evidence suggesting that [DPS’s] reasons [for not hiring Plaintiff] were
33

pretextual.” (Id.)
Judge Crews noted that “[w]hile Vazirabadi points to his 20 years of relevant
experience and his written team facilitation narrative description of the group discussion
he facilitated in his panel interview, the record is devoid of any ‘facts showing an
overwhelming disparity in qualifications’ in his favor.” (Id. at 12 (internal citation
omitted) (quoting Johnson, 594 F.3d at 1211).)
Judge Crews then addressed Plaintiff’s argument concerning the destruction of
the interview notes taken by the panel members. Judge Crews found that “the fact that
Johnson collected and discarded all the panelists’ interview notes sometime after the
interviews, and before offering the positions to the top-ranked candidates, [does not]
support a finding of pretext.” (ECF No. 135 at 13.) Judge Crews discussed how
“Johnson collected and discarded the panelists’ notes as they pertained to all five
candidates . . . , [but] did not discard interview notes only as they pertained to
Vazirabadi.” (Id.)
In addition, Judge Crews noted how Plaintiff’s argument concerning the
destruction of the interview notes “is essentially an assertion that DPS is guilty of
evidence spoliation.” (Id.) Judge Crews observed that to “obtain sanctions for
spoilation of evidence, a party must first show that ‘(1) a party ha[d] a duty to preserve
evidence because it knew, or should have known, that litigation was imminent, and
(2) the adverse party was prejudiced by the destruction of the evidence.’” (Id. (quoting
Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007).)
Judge Crews determined, however, that “DPS destroyed the interview notes at a

34

time before its preservation duty was triggered.” (ECF No. 135 at 14 (emphasis in
original).) Specifically, Judge Crews found that the “evidence in the record indicates
that these notes were destroyed sometime between September 10, 2015 . . . and
September 24, 2015,” but the “earliest date . . . DPS’s duty to preserve could have
been triggered” was October 20, 2015. (Id. at 14–15.) Therefore, Judge Crews
determined that “DPS’s destruction of the interview notes does not raise any triable
issue of material fact affecting summary judgment.” (Id. at 15.) For all these reasons,
Judge Crews concluded that Plaintiff failed to show that DPS’s justifications for not
hiring him were pretextual. (Id. at 11–15.)
Pursuant to a liberal reading of Plaintiff’s Objection to Judge Crews’s decision on
his claim of national origin discrimination, the Court understands Plaintiff to be arguing
that DPS’s reasons for not hiring him were pretextual based on the following grounds:
(1) DPS discarded the panel interview notes and thus an adverse inference should be
applied against it to remedy the spoliation; (2) DPS presented contradictory testimony;
(3) DPS’s bilingual question caused a disparate impact; and (4) Plaintiff was more
qualified than the candidates who were ultimately hired for the two PIE positions. (See
ECF No. 136.) The Court will address each argument in turn.
a.

Adverse Inference Sanction

“Even in cases where [schools] destroy evidence they are required to retain
under 29 C.F.R. § 1602.[40], plaintiffs must be diligent in the defense of their own
interests, and should seek sanctions under Federal Rule of Civil Procedure 37 to
remedy any prejudice caused by spoliation.” Turner, 563 F.3d at 1149 (internal

35

quotations marks omitted). “When a plaintiff fails to seek sanctions under Rule 37 and
thus forecloses access to the substantial weaponry in the district court’s arsenal, the
plaintiff’s only remaining option is to seek sanctions under a spoliation of evidence
theory.” Id. (internal quotation marks omitted). Thus, parties proceed at their own peril
in choosing not to seek lesser discovery-related sanctions at an earlier phase of
litigation, then later requesting an adverse inference, as Plaintiff does here. See
Mueller v. Swift, 2017 WL 2362137, at *5 & n.4 (D. Colo. May 31, 2017).
“Spoliation sanctions are proper when ‘(1) a party has a duty to preserve
evidence because it knew, or should have known, that litigation was imminent, and
(2) the adverse party was prejudiced by the destruction of the evidence.’” Turner, 563
F.3d at 1149 (quoting Grant, 505 F.3d at 1032). “But if the aggrieved party seeks an
adverse inference to remedy the spoliation, it must also prove bad faith.” Id. “Mere
negligence in losing or destroying records is not enough because it does not support an
inference of consciousness of a weak case.” Id. (quoting Aramburu v. Boeing Co., 112
F.3d 1398, 1407 (10th Cir. 1997)).
In the Objection, Plaintiff argues that Judge Crews erred in finding that a
spoliation sanction should not be imposed against DPS because “regardless of any
early, late or no notification to DPS” that litigation was imminent, “29 C.F.R. § 1602.40
and DPS GBA policy” required DPS to preserve the interview notes for two years. (ECF
No. 136 at 4.) Plaintiff also argues that DPS should have known about its duty to
preserve the interview notes because it is a “sophisticated litigator.” (Id. at 5–6.) In
addition, Plaintiff argues that an adverse inference sanction is proper because he was

36

prejudiced by destruction of the interview notes, which DPS destroyed “intentionally and
in bad faith.” (Id. at 6–8.)
It is clear Plaintiff has misinterpreted the first prong that must be satisfied in
order to obtain spoliation sanctions. Plaintiff does not dispute Judge Crews’s findings
that the interview notes were destroyed before September 24, 2015, and that the
earliest date DPS’s duty to preserve could have been triggered was October 20, 2015.
(See id. at 2, 4–8, 17.) Instead, he argues that it matters not whether DPS knew, or
should have known, that litigation was imminent because DPS violated a federal
regulation and “DPS GBA policy.” This is clearly not the standard. See Turner, 563
F.3d at 1149. Since it is undisputed that DPS discarded the interv iew notes before it
knew, or should have known, litigation was imminent, spoliation sanctions are not
appropriate.
Although more is surely not needed in this regard, the Court notes that the
record does not support the finding that Plaintiff was prejudiced by the destruction of
the interview notes. According to Plaintiff, the interview notes were “very extensive
hiring documentation that proves Vazirabadi’s excellent panel interview, as the highest
ranked candidate for hiring.” (ECF No. 136 at 6.) But there is simply nothing in the
record to support this statement, other than Plaintiff’s own subjective opinion about how
he performed. Indeed, the record amply supports the finding that Plaintiff preformed
poorly in his panel interview.
Moreover, the record is likewise devoid of anything that could support the notion
that DPS or the panel interviewers acted in bad faith when they discarded the interview
notes. At the most, the record supports the finding that they were negligent in their
37

conduct, but “[m]ere negligence in losing or destroying records is not enough because it
does not support an inference of consciousness of a weak case.” Turner, 563 F.3d at
1149. As a result of the foregoing, the Court denies Plaintiff’s request for spoliation
sanctions, including an adverse inference.
b.

Sham Affidavits

In order to show that DPS’s reasons for not hiring him were pretextual, Plaintiff
argues that Johnson and Gwaltney produced “sham affidavits.” (ECF No. 136 at 8–11.)
In particular, Plaintiff argues that through their depositions and affidavits, “Johnson and
Gwaltney present three different versions of hiring records destruction.” (Id. at 2, 9, 17.)
Plaintiff asserts that “by presenting Johnson and Gwaltney’s contradictory affidavits,
[DPS] is attempting to create a sham fact issue—a sham fact that Vazirabadi did poorly
in [his] panel interview.” (Id. at 9 (emphasis omitted).) Plaintiff claims that Judge Crews
“erred in neither acknowledging nor considering Vazirabadi’s arguments in support of
Johnson and Gwaltney’s sham affidavits.” (Id. at 10.)
Plaintiff’s allegation that Johnson and Gwaltney produced “sham affidavits” is
based on the following sequence of events. (See ECF No. 122 at 7–8.) On September
10, 2015, Plaintiff’s panel interview took place. (ECF No. 116-1 at 2, ¶ 9.) After the last
panel interview on September 21, 2015, the panelists ranked the candida tes. (ECF
No. 122 at 7 (citing ECF No. 116-1 at 3, ¶ 11; ECF No. 116-5 at 2, ¶ 6).) In his
deposition, Gwaltney acknowledged that he made notes on his two-page interview
sheet during Plaintiff’s panel interview. (ECF No. 122 at 14; see also id. at 12–13.)
At the bottom of the interview sheet’s second page, there is an “Overall Ranking”

38

index from “1” to “9”—with “1” being categorized as “Fail” and “9” being categorized as
“Pass.” (Id. at 13.) When asked whether he used the ranking index during the
September 21 discussions, Gwaltney replied: “I believe I used that.” (Id. at 15.)
According to Plaintiff, Gwaltney thus confirmed that he used the interview sheet he took
notes on throughout Plaintiff’s September 10 panel interview during discussions that
took place on September 21. (Id. at 7.)
Plaintiff claims that later in his deposition, Gwaltney “totally recants” his
statement that he used the interview notes pertaining to Plaintiff during the September
21 discussions. (Id.) During the deposition, Plaintiff inquired as to when Gwaltney
discarded the interview notes. (Id. at 7, 11.) Gwaltney responded that he “[does not]
remember specifically” when he shredded the notes, but that it was “[s]hortly after the
interview.” (Id.)
Based on these sequence of events, Plaintiff claims that “Gwaltney is making
very contradictory statements, where on one hand he claims ‘shortly after’ Varzirabadi’s
panel interview on September 10, 2015, he ‘shredded’ Vazirabadi’s interview notes. On
the other hand, he also admits using Vazirabadi’s two-page interview sheet on that Sep.
21, 2015 meeting—11 days after Vazirabadi’s interview.” (Id. at 8 (internal citation
omitted) (emphasis in original).)
Next, Plaintiff points to a sentence contained in DPS’s Reply in Support of its
Motion for Summary Judgment, wherein DPS stated: “[Johnson] collected and
discarded all the panelists’ notes as soon as the interviews were complete because
once the team had ranked the candidates, she had all the data she needed to m ake a

39

hiring decision.”7 (Id. (quoting ECF No. 121 at 3).)
Based on the forgoing events, Plaintiff discusses how “Johnson and Gwaltney
present three different versions of hiring records destruction”:
[DPS’s statement that Johnson] collected and discarded
all the panelists’ notes as soon as the interviews were
complete...” 100% contradicts with both versions of
Mr. Gwaltney’s deposition narratives. In one version,
Mr. Gwaltney “shredded” Vazirabadi’s interview notes shortly
after Vazirabadi’s interview on September 10, 2015.
Mr. Gwaltney did not give his notes to Ms. Johnson for its
destruction. In another version, Mr. Gwaltney, again, without
giving Vazirabadi’s interview notes to Ms. Johnson to be
“discarded”, Mr. Gwaltney stated he “used” it on September
21, 2015. By simple fact checking, [DPS] should have
noticed Ms. Johnson and Mr. Gwaltney statement are
contradictory with no factual basis for Court’s filing.
(ECF No. 122 at 8 (emphasis in original) (internal citations omitted).) Plaintiff alleges
that by presenting Johnson and Gwaltney’s contradictory, “sham affidavits,” DPS is
“attempting to create a sham fact . . . that Vazirabadi did poorly in [his] panel interview.”
(ECF No. 136 at 9 (emphasis omitted).)
“Sham affidavits, though ‘unusual,’ arise when a witness submits an affidavit that
contradicts the witness’s prior testimony.” Knitter v. Corvias Military Living, LLC, 758
F.3d 1214, 1218 n.3 (10th Cir. 2014) (quoting Law Co. v. Mohawk Const. & Supply Co.,
577 F.3d 1164, 1169 (10th Cir. 2009)). Although “[a]n affidavit may not be disregarded
solely because it conflicts with the affiant’s prior sworn statements,” the Court may
nonetheless disregard a conflicting affidavit if it “constitutes an attempt to create a sham

7

In support of this statement, DPS cites Johnson’s deposition testimony. (ECF No. 121
at 3 (citing ECF No. 121-1 at 17).) Although the testimony DPS references discusses how
Johnson had all of the data she needed to make a hiring decision, it does not address who
destroyed the interview notes or when. (ECF No. 121-1 at 17.)

40

fact issue.” Mohawk, 577 F.3d at 1169; see also Knitter, 758 F.3d at 1218 n.3. In
determining whether
an affidavit creates a sham fact issue, [courts] consider
whether: “(1) the affiant was cross-examined during his
earlier testimony; (2) the affiant had access to the pertinent
evidence at the time of his earlier testimony or whether the
affidavit was based on newly discovered evidence; and
(3) the earlier testimony reflects confusion which the affidavit
attempts to explain.”
Mohawk, 577 F.3d at 1169 (quoting Ralston v. Smith & Nephew Richards, Inc., 275
F.3d 965, 973 (10th Cir. 2001)).
This is clearly not an instance of a witness submitting an affidavit that contradicts
the witness’s prior testimony. See Knitter, 758 F.3d at 1218 n.3. Notably, Plaintiff does
not once point to where Johnson and Gwaltney’s affidavits conflict with their prior sworn
statements. (See ECF No. 136 at 8–11.) Instead, the alleged “inconsistent statements”
Plaintiff points to solely occurred during earlier deposition testimony and a sentence in
a Reply filing. (See id.)
Moreover, the affidavits do not attempt to explain any confusion that could
potentially arise from these alleged inconsistent statements. (See ECF No. 116-1
at 1–4; ECF No. 116-5.) Indeed, the af fidavits do not once mention the interview notes
or when or how they were discarded. (See id.) Interestingly, in Plaintiff’s analysis of
the third consideration of the sham affidavit doctrine—whether the earlier testimony
reflects confusion which the affidavit attempts to explain—Plaintiff states “[Johnson and
Gwaltney’s] earlier testimony does not reflect[ ] confusion which the affidavit[s]
attempt[ ] to explain.” (ECF No. 136 at 9 (alteration incorporated) (emphasis added).)

41

In sum, this is clearly not an issue implicating the sham affidavit doctrine.
To the extent Plaintiff is discussing these alleged inconsistent statements to
show that DPS’s reasons for not hiring him were pretextual, the Court finds Plaintiff’s
argument to be largely without merit. To establish a genuine issue of material fact as to
pretext, Plaintiff “must demonstrate that [DPS’s] proffered non-discriminatory reason is
unworthy of belief . . . by producing evidence of such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in [DPS’s] prof fered legitimate
reasons.” Reinhardt, 595 F.3d at 1134 (internal quotation marks omitted). Plaintiff
clearly has not made such a demonstration. Notably, Plaintiff does not explain how the
alleged inconsistent statements contradict DPS’s proffered reasons for not hiring him.
Even if the Court generously construes Plaintiff’s argument and finds that there is an
inconsistency as to whether Gwaltney or Johnson destroyed the interview notes, and
whether that event took place before or after the September 21 discussion, the Court
finds that this would not amount to a genuine issue of material fact as to pretext.
c.

Bilingual Questioning

In his Objection, Plaintiff claims that Judge Crews entirely ignored his disparate
impact claim. (ECF No. 136 at 6.) However, Plaintiff did not raise his disparate impact
claim in his Response to the Motion for Summary Judgment or in his Surreply. (See
ECF Nos. 117 & 122.) Nonetheless, Plaintiff claims that he has “continuously, [and] in
many filings, made arguments that DPS subjects 100% of its job applicants to bilingual
questioning,” though he fails to cite or reference those filings. (ECF No. 136 at 11.)
Thus, the issue of disparate impact was not before the Magistrate Judge on summary
judgment, and is deemed forfeited. United States v. Garfinkle, 261 F.3d 1030, 1031
42

(10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the
magistrate judge’s report are deemed waived”); see also Pevehouse v. Scibana, 229 F.
App’x 795, 796 (10th Cir. 2007).
Nevertheless, the Court will briefly address the arguments Plaintiff raised in the
Objection regarding his disparate impact claim. (See ECF No. 136 at 11–12.) “To
survive summary judgment on an individual claim for disparate impact requires three
steps”:
First, [Plaintiff] must establish a prima facie case that (a) an
employment practice (b) causes a disparate impact on a
protected group. Second, if [Plaintiff] presents a prima facie
case, the burden will shift to [DPS] to demonstrate that the
challenged practice is job related for the position in question
and consistent with business necessity. Third, assuming
[DPS] shows business necessity, [Plaintiff] may still prevail
by showing that the employer refuses to adopt an available
alternative employment practice that has less disparate
impact and serves the employer’s legitimate needs.
Tabor v. Hilti, Inc., 703 F.3d 1206, 1220–21 (10th Cir. 2013) (internal citations and
quotation marks omitted). It is abundantly clear that Plaintiff has failed to establish a
prima facie case that DPS’s bilingual questioning causes a disparate impact on a
protected group.
In the Objection, Plaintiff appears to allege that DPS’s employment practice of
asking applicants whether they are bilingual in a language causes a disparate impact
on various protected groups. (See ECF No. 136 at 11–12.) Plaintiff cites statistics
about the number of DPS applicants who identified themselves as being bilingual in
either “Amharic,” “Arabic,” “Somali,” or an unlisted language. (Id. at 12.) That is the
extent of Plaintiff’s support for his disparate impact claim. (See id. at 11–12.) Notably,
43

Plaintiff does present any evidence to support his claim that DPS’s question about
whether an applicant is bilingual in a language causes a disparate impact on any group.
(See id.) Thus, Plaintiff has failed to establish even a prima facie case of disparate
impact discrimination. See Tabor, 703 F.3d at 1220. Therefore, for this additional
reason, Plaintiff’s disparate impact claim cannot survive summary judgment. See id.
To the extent Plaintiff is discussing DPS’s bilingual question to show that DPS’s
reasons for not hiring him were pretextual, the Court finds such an argument to be
wholly without merit. To establish a genuine issue of material fact as to pretext, Plaintiff
“must demonstrate that [DPS’s] proffered non-discriminatory reason is unworthy of
belief.” Reinhardt, 595 F.3d at 1134. Plaintiff clearly has not made such a
demonstration as Plaintiff does not attempt to explain how DPS’s bilingual question
illustrates “weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in [DPS’s] proffered legitimate reasons” for not hiring him. Id.
d.

Plaintiff’s Qualifications

In his Objection, Plaintiff argues that Judge Crews mistakenly determined that
DPS’s justifications were not pretextual because the record was devoid of any facts
showing that Plaintiff was more qualified than the applicants DPS ultimately hired.
(ECF No. 136 at 16–17.) In support, Plaintiff discusses how: (1) Johnson’s affidavit
confirms that Plaintiff worked for over 20 years in the engineering profession, with
experience in both process improvement and project management; (2) his cover letter
reviewed in detail how his past projects correlated with the “essential functions” of a
PIE, which Johnson commented on approvingly during his phone interview; (3) he

44

performed well in response to the Facilitation Question, as displayed in his “Team
Facilitation Narrative”; (4) Judge Crews failed to examine his cover letter and resume;
(5) in comparing his cover letter and resume with those of the hired candidates, “his
qualification, unequivocally, in content, nature of the projects and accomplishments, is
well above both hired candidates”; and (6) he has more applicable experience for the
PIE position than the hired candidates. (Id. (emphasis omitted).)
A court “will draw an inference of pretext where the facts assure [the court] that
the plaintiff is better qualified than the other candidates for the position.” Santana v.
City & Cnty. of Denver, 488 F.3d 860, 865 (10th Cir. 2007) (internal quotation marks
omitted). The Tenth Circuit has “cautioned that pretext cannot be shown simply by
identifying minor differences between plaintiff’s qualifications and those of successful
applicants, but only by demonstrating an overwhelming merit disparity.” Id. (internal
quotation marks omitted) (emphasis added). Moreover, it is not the Court’s “role to act
as a super personnel department that second guesses employers’ business
judgments.” Id. (internal quotation marks omitted).
Under these standards, the differences between Plaintiff’s and the hired
candidates qualifications does not come close to suggesting pretext. Nguyen has a
Bachelor of Science in Materials Science and Engineering from Cornell University’s
College of Engineering and had over six years of relevant engineering experience at
CoorsTek and Surmet Corporation, with no gaps in his professional employment. (ECF
No. 116-1 at 17–18.) Schroeder has a Bachelor in Science in Industrial Eng ineering
from the University of Michigan’s College of Engineering and had over five years of
relevant engineering experience at Intel Corporation with no gaps in her professional
45

employment. (Id. at 19–20.)
Plaintiff has a Bachelor of Science in Industrial Engineering from the University
of Wisconsin–Stout and over 20 years of engineering experience. (Id. at 15–16.) While
it is undisputed that Plaintiff had many years of relevant experience, his sole occupation
for the two years before he applied for the PIE position had been as an UberX driver.
(Id. at 2, 15 ¶ 7.) Moreover, although Plaintiff worked as a project engineer for
Cablenet Wiring Products from July 2005 through September 2013 and held various
engineering positions at eight different companies from 1987 until 2001, he had a gap
in professional employment from April 2001 until May 2005 when he served as an
unpaid caregiver. (Id. at 15–16.) In addition, when comparing Plaintiff’s cover letter
and resume with that of Schroeder and Nguyen, the Court simply cannot conclude that
there is an “overwhelming merit disparity.” Santana, 488 F.3d at 865. (Compare ECF
No. 116-1 at 13–16, with id. at 17–20.)
The record also provides that an important qualification for the position was the
applicant’s facilitation skills. (ECF No. 116-1 at 2, ¶¶ 4, 8; see also id. at 11–12.)
Plaintiff has made no argument that he was overwhelmingly more qualified than
Schroeder or Nguyen in this regard, nor does the record support such a proposition.
(See, e.g., ECF No. 116 at 2–3, ¶ 9; ECF No. 116-5 at 1, ¶ 4; ECF No. 116-6 at 8–9.)
Indeed, the record firmly supports the finding that Plaintiff demonstrated inferior
facilitation skills when compared to Schroeder and Nguyen. (See, e.g., ECF No. 116
at 2–3, ¶¶ 9–12; ECF No. 116-5 at 1–2, ¶¶ 4–6.) Notably , this finding is only countered
by Plaintiff’s own subjective opinion that he exemplified stronger facilitation skills than

46

DPS contends. (See ECF No. 117 at 25–26.)
In sum, when considering the qualifications of all three applicants, the Court
finds that Schroeder and Nguyen’s qualifications were arguably superior, and certainly
not overwhelmingly inferior, to Plaintiff’s. As a result, Plaintiff is not entitled to an
inference of pretext. See Santana, 488 F.3d at 865.
5.

Failure to Pursue Age Discrimination Claim in Objection

The Court notes that Plaintiff does not appear to dispute the Recommendation’s
findings in regard to his age discrimination claim. (See ECF No. 136.) Plaintiff’s
Objection does not reference his age discrimination claim, the ADEA, or Judge Crews’s
findings in regard to the claim. (See id.) Notably, in his conclusion, Plaintiff discusses
how he “was refused hiring because of his Iranian national origin,” but makes no
reference to his age or DPS’s alleged age discrimination. (Id. at 19; see also id. at 15,
¶ 7.10.) As a result, the Court reviews Judge Crews’s analysis of Plaintiff’s ADEA claim
for clear error, and finds none. See Bertolo, 2013 WL 1189508, at *1 (“In the absence
of a timely and specific objection, ‘the district court may review a magistrate . . .
[judge’s] report under any standard it deems appropriate’”) (quoting Summers, 927 F.2d
at 1167). Accordingly, the Court adopts the Recommendation to the extent it grants
summary judgment in DPS’s favor on Plaintiff’s ADEA claim.8
6.

Summary of Section V

DPS produced legitimate, non-discriminatory reasons for its decision not to hire

8

In any event, the foregoing analysis makes clear that Plaintiff’s ADEA claim would
likewise not survive summary judgment as he has failed to show that DPS’s justifications for not
hiring him were pretextual.

47

Plaintiff. Because Plaintiff failed to put forth sufficient evidence to create a genuine
issue of material fact on the issue of pretext, the Court adopts the Recommendation to
the extent it grants DPS’s Motion for Summary Judgment. As a result, the Court will
direct the Clerk of the Court to enter judgment in favor of DPS on all claims and
terminate this case. Therefore, Plaintiff’s Objection to Denial of Motion to Compel (ECF
No. 107) is overruled as moot and Plaintiff’s Motion for Leave to File Surreply (ECF
No. 113) is denied as moot.
B.

The Doe Defendants
In the caption of his Second Amended Complaint, Plaintiff listed as putative

Defendants in this action DPS, the Doe Corporations, the Doe Entities, and the Doe
Individuals. (ECF No. 67 at 1.) In his Recommendation, Judge Crews recommended
that the Doe Corporations and Doe Entities be dism issed without prejudice. (ECF
No. 135 at 15–16.)
In discussing why the “various John and Jane Does” should be dismissed from
this action, Judge Crews discussed how there is “no provision in the Federal Rules of
Civil Procedure for naming fictitious or unknown parties in a lawsuit.” (Id. at 15–16,
n. 8–9 (citing Watson v. Unipress, Inc., 733 F.2d 1386, 1388 (10th Cir. 1984); Coe v.
U.S. Dist. Court for Dist. of Colo., 676 F.2d 411, 415 (10th Cir. 1982)).) Judge Crews
recognized that Rule 10(a) of the Federal Rules of Civil Procedure specifies that the
“title of a complaint must name all the parties.” (ECF No. 135 at 15–16, n. 8.) Judge
Crews then concluded that “[b]ecause unnam ed parties are not permitted by the
Federal Rules, and because Vazirabadi has not identified or named these unknown

48

defendants, these various John and Jane Does should be dismissed from the action.”
(Id.)
In his Objection, Plaintiff does not dispute Judge Crews’s analysis regarding the
Doe defendants, nor his dismissal of the Doe Corporations or the Doe Entities. (See
ECF No. 136.) As a result, the Court reviews Judge Crews’s analysis of the Doe
defendants for clear error and finds none. See 2121 East 30th St., 73 F.3d at 1060
(“[A] party’s objections to the magistrate judge’s report and recommendation must be
both timely and specific to preserve an issue for de novo review by the district court”)
(emphasis added); see also Bertolo, 2013 WL 1189508, at *1 (“In the absence of a
timely and specific objection, ‘the district court may review a magistrate . . . [judge’s]
report under any standard it deems appropriate’”) (quoting Summers, 927 F.2d
at 1167).
While Judge Crews ultimately recommended that the Court dismiss the Doe
Corporations and the Doe Entities, but not the Doe Indiv iduals, it is clear from his
analysis that he intended to likewise recommend the dismissal of the Doe Individuals.
(See ECF No. 135 at 15–16, & n.8 (“these various John and Jane Does should be
dismissed from the action”).) This finding is supported by the fact that Judge Crews did
not recommend that the Doe Individuals remain as party defendants in this action.
(See id. at 15–16.) Accordingly, the Court adopts the Recommendation as modified
and dismisses without prejudice Plaintiff’s claims against the Doe Corporations, the Doe
Entities, and the Doe Individuals.

49

VII. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The March 6, 2019 Recommendation (ECF No. 125) is ADOPTED in its entirety;

2.

Plaintiff’s March 12, 2019 Objection (ECF No. 129) is OVERRULED;

3.

Plaintiff’s November 30, 2018 Motion to Amend (ECF No. 108) is DENIED;

4.

Plaintiff’s February 8, 2019 Motion to Amend (ECF No. 118) is DENIED;

5.

The March 28, 2019 Recommendation (ECF No. 135) is ADOPTED AS
MODIFIED;

6.

Plaintiff’s April 11, 2019 Objection (ECF No. 136) is OVERRULED;

7.

Defendant DPS’s Motion for Summary Judgment (ECF No. 116) is GRANTED as
to all claims;

8.

Plaintiff’s claims against Defendants Doe Individuals are DISMISSED WITHOUT
PREJUDICE;

9.

Plaintiff’s claims against Defendants Doe Corporations are DISMISSED
WITHOUT PREJUDICE;

10.

Plaintiff’s claims against Defendants Doe Entities are DISMISSED W ITHOUT
PREJUDICE;

11.

Plaintiff’s Objection to Denial of Motion to Compel (ECF No. 107) is
OVERRULED AS MOOT;

12.

Plaintiff’s Motion for Leave to File Surreply (ECF No. 113) is DENIED AS MOOT;

13.

The Clerk of the Court shall enter judgment in favor of Defendant DPS and
against Plaintiff, and shall terminate this case; and

14.

Each party shall bear his or its own costs.
50

Dated this 25th day of June, 2019.
BY THE COURT:

_________________________
William J. Martínez
United States District Judge

51