Vazirabadi v. Boasberg et al

Filing 50

ORDER Adopting October 10, 2017 Recommendation of United States Magistrate Judge. Plaintiff's Objection to the Recommendation of United States Magistrate Judge (ECF No. 48 ) is OVERRULED. The Recommendation of United States Magistrate Judge (ECF No. 42 ) is ADOPTED in its entirety. Defendants' Motion to Dismiss (ECF No. 29 is GRANTED IN PART and DENIED IN PART, ORDERED by Judge William J. Martinez on 3/30/2018. (angar, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 17-cv-1194-WJM-MEH
ALIREZA VAZIRABADI,
Plaintiff,
v.
TOM BOASBERG, in his individual and official capacities,
TERRI SAHLI, in her individual and official capacities,
DENVER PUBLIC SCHOOLS,
JOHN AND JANE DOES 1 THROUGH 20, and
DOE ENTITIES 1 THROUGH 10, whose true names are unknown,
Defendants.

ORDER ADOPTING OCTOBER 10, 2017 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE

Plaintiff Alireza Vazirabadi (“Plaintiff”), proceeding pro se, initiated this action,
alleging violations of constitutional rights, against Denver Public Schools (“DPS”), Tom
Boasberg (“Boasberg”), and Terri Sahli (“Sahli”), (collectively, “Defendants”). This
matter is before the Court on United States Magistrate Judge Michael E. Hegarty’s
Recommendation dated October 10, 2017 (ECF No. 42) (“Recom mendation”), which
recommends granting in part and denying in part Defendants’ Motion to Dismiss (ECF
No. 29) (“Motion to Dismiss”). The Recommendation is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). Plaintiff filed a timely
Objection to the Recommendation (ECF No. 48) (“Objection”). For the reasons set
forth below, Plaintiff’s Objection is overruled and Judge Hegarty’s Recommendation is
adopted in its entirety.

I. BACKGROUND
In his First Amended Complaint (ECF No. 26) (“Complaint”), Plaintiff states that
on or about August 3, 2015, Plaintiff responded to Defendants’ job advertisement for
two available Process Improvement Engineer (“PIE”) positions. (ECF No. 26 ¶ 22.)
Plaintiff registered on the DPS website to submit his resume and cover letter, and to
answer an online application form. (Id.) The online form asked applicants about their
bilingual skills and included a pull-down menu which listed Arabic, Somali, Amharic, and
Swahili for applicants to choose from. (Id.) The application also stated, “if your
language was not listed above . . . please indicate it here.” (Id.) In response to this last
question, Plaintiff entered “Farsi/Persian.” (Id.) Plaintiff claims this identified him as
Iranian. (Id.) Plaintiff was called back for a phone interview on August 31, 2015, and
then for an in person panel interview on September 10, 2015. (Id. ¶¶ 23–24.)
On September 23, 2015, DPS e-mailed Plaintiff to say it had decided to hire
other candidates for the two positions. (Id. ¶ 25.) In its Position Statement filed with
the U.S. Equal Employment Opportunity Commission (“EEOC”), DPS explains that it
“did not hire [Plaintiff], as he failed to exhibit strong teamwork skills.” The Statement
goes on to explain, “a key part of the interview is testing the candidate’s ability to lead a
team by having him/her facilitate a group activity. Each candidate had to facilitate a
discussion on the topic of ‘things to do in Denver.’ [Plaintiff] did poorly during this part
of the interview. Instead of facilitating a group discussion, he dictated it. He was
unable to elicit comments from everyone in the group. He appeared to lecture the
team, instead of drawing them together cohesively.” (Id. ¶ 35 (citation omitted).)

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“Plaintiff considers all such allegations 100% false.” (Id. ¶ 26.) Instead, Plaintiff
claims that he was not hired because his status as “bilingual in Persian/Farsi identified
him as [an] Iranian national [], [which in turn,] subject[ed] him to extreme vetting by
Defendants and [their] refusal to hire,” despite Plaintiff having “twice the experience,
and highest phone and in-person interview ratings. Defendant hired lowest rated
candidates.” (Id. ¶ 32 (internal citation omitted).) Plaintiff claims that Defendants
“planted bilingual questioning into DPS online job application [because] bilingual
questioning reveal[s] (1) national origin, (2) religion and (3) ethnic background of job
applicants of Amharic, Ethiopian, Somalian, Swahili, Arabic, Farsi/Persian languages,
for extreme vetting.” (Id. ¶ 33 (internal emphasis omitted).)
Plaintiff alleges six causes of action arising from these facts against DPS and
Sahli and Boasberg, in their official and individual capacities: (1) Fourteenth
Amendment Due Process violations resulting from Defendants’ “covert systematic
identification of national origin, ethnic/racial and religion, under pretext of job applicants
‘bilingual’ questioning for extreme vetting” (id. at 9) (“First Claim"); (2) Fourteenth
Amendment Equal Protection claims caused by Defendants’ “intentional bilingual
questioning, segregation and classification for extreme vetting” (id. at 14) (“Second
Claim"); (3) Fourteenth Amendment Due Process violations stemming from
“Defendants[’] false statement with altered documents to EEOC against Plaintiff” (id. at
16) (“Third Claim”); (4) Fourteenth Amendment Due Process violation due to
Defendants’ “unreasonable and warrantless search by Plaintiff’s extreme vetting” (id. at
17) (“Fourth Claim"); (5) First Amendment Establishment Clause violations (id. at 19)

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(“Fifth Claim"); and (6) “Discrimination, refusal to hire Plaintiff with respect to national
origin” (id. at 21) (“Title VII claim”).
II. STANDARD OF REVIEW
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
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. One Parcel of Real Property Know n as 2121 East 30th St.,
73 F.3d 1057, 1059 (10th Cir. 1996). An objection is suf ficiently 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.” Id.
A motion under Rule 12(b)(1) is a request upon the court to dismiss a claim for
lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A plaintiff bears the burden
of establishing that the court has jurisdiction. Basso v. Utah Power & Light Co., 495
F.2d 906, 909 (10th Cir. 1974). Dismissal of a complaint under Rule 12(b)(1) is proper
when the Court lacks subject matter jurisdiction over a claim for relief. See SBM Site
Services, LLC v. Garrett, 2012 WL 628619, *1 (D. Colo. Feb. 27, 2012).
When a court’s subject matter jurisdiction is challenged, the court may review
materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss
into a motion for summary judgment. Davis ex rel. Davis v. U.S., 342 F.3d 1282, 1296

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(10th Cir. 2003) (stating that “when a party challenges the allegations supporting
subject-matter jurisdiction, the ‘court has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts’”
(quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)); Pringle v. United
States, 208 F.3d 1220, 1222 (10th Cir. 2000); Holt, 46 F.3d at 1003.
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a
claim in a complaint for “failure to state a claim upon which relief can be granted.” The
12(b)(6) standard requires the Court to “assume the truth of the plaintiff’s well-pleaded
factual allegations and view them in the light most favorable to the plaintiff.” Ridge at
Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such
a motion, the dispositive inquiry is “whether the complaint contains ‘enough facts to
state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is a harsh remedy
which must be cautiously studied, not only to effectuate the spirit of the liberal rules of
pleading but also to protect the interests of justice.” Dias v. City & Cnty. of Denver, 567
F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). “Thus, ‘a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.’” Id. (quoting
Twombly, 550 U.S. at 556).
Further, the Court is 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 Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). T he Court,

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however, cannot act as advocate for Plaintiff, who still must 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,
Kan., 318 F.3d 1183, 1188 (10th Cir. 2003).
III. ANALYSIS
In their Motion to Dismiss, Defendants raise four main contentions.
First, they argue that Plaintiff’s §1983 claims (First through Fifth Claims above)
must be dismissed. According to Defendant, Plaintiff has not alleged facts establishing
District liability, because a “local government unit cannot be held liable for the actions of
its employees under a theory of respondeat superior.” (ECF No. 29 at 4.) Additionally,
Plaintiff’s “§ 1983 claims against Boasberg and Sahli should be dismissed under the
doctrine of qualified immunity.” (Id. at 7.) Defendants argue that Boasberg and Sahli
are entitled to qualified immunity because Plaintiff “has no property interest in the PIE
position that could support a clearly established deprivation of due process” (id. at 8),
“classification based on language does not amount to a clearly established violation of
the Equal Protection Clause” (id. at 9), and Plaintiff’s allegations also fail to
“demonstrate a clearly established violation of the First Amendment” (id. at 10).
Second, Defendants argue that Plaintiff’s Title VII Claim “must be dismissed
because [Plaintiff] fails to allege a cognizable or plausible Title VII claim of national
origin discrimination.” Defendants point out that Plaintiff identified himself as bilingual in
Farsi/Persian before the district selected him for multiple interviews—“[i]f the District
intended to disqualify him because of his national origin, why would it wait until after it

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had gone to the trouble of advancing his candidacy through several rounds of
interviews?” (Id. at 13.)
Third, and finally, Defendants argue that Plaintiff “failed to exhaust any claim of
religious discrimination.” (Id. at 14.) According to Defendants, in his “Charge of
Discrimination with the EEOC, [Plaintiff] checked the boxes for national origin and age
discrimination, but did not check the box for religious discrimination.” (Id. at 14.)
After considering the parties’ briefs, Judge Hegarty recommended the dismissal
of Plaintiff’s First, Second, Third, Fourth, and Fifth Claims, and dismissing Boasberg
and Sahli from the case. (ECF No. 42 at 22.) However, Judge Hegarty also
recommended denying Defendants’ Motion to Dismiss with respect to Plaintiff’s Title VII
claim against DPS. (Id.)
A.

§ 1983 Official Capacity Claims Against Defendants Boasberg and Sahli
Judge Hegarty found that “Plaintiff’s official-capacity claims against Boasberg

and Sahli are duplicative of his claims against DPS.” (ECF No. 42 at 6.) Tenth Circuit
case law holds that “a section 1983 suit against a municipality and a suit against a
municipal official acting in his or her official capacity are the same.” Stuart v. Jackson,
24 F. App’x 943, 956 (10th Cir. 2001). According to Judge Hegarty, “[c]onsequently,
where a plaintiff sues both the municipality and the municipal official in an official
capacity under the same theory of recovery, courts have dismissed the official capacity
claim as ‘duplicative’ or ‘redundant’ of the claim against the municipal entity.” (ECF No.
42 at 6.) Therefore, Judge Hegarty recommended that “Plaintiff’s claims against
Defendants Boasberg and Sahli in their official capacities be dismissed.” (Id. at 7.)

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Plaintiff does not object to the Judge Hegarty’s finding on this issue and the
Court is persuaded by Judge Hegarty’s analysis and Recommendation. Accordingly,
Plaintiff’s claims against Defendants Boasberg and Sahli in their official capacities are
dismissed.
B.

§ 1983 Official Capacity Claims Against Defendant DPS
Tenth Circuit case law holds that local governments can be held liable under

§ 1983 only for their own illegal acts, and cannot be held liable under § 1983 solely
because they employ a person who violated the plaintiff’s constitutional rights. (ECF
No. 42 at 7 (quoting Connick v. Thompson, 563 U.S. 51, 60 (2011); Lawrence v. Sch.
Dist. No. 1, 560 F. App’x 791, 794 (10th Cir. 2014)).) Thus, the test to establish a
§ 1983 claim again a municipality requires that a plaintiff “show that the policy was
enacted or maintained with deliberate indifference to an almost inevitable constitutional
injury by plausibly alleging (1) the existence of a municipal policy or custom,
(2) causation, and (3) state of mind.” (ECF No. 42 at 7 (quoting Schneider v. City of
Grand Juncture Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013)).)
Judge Hegarty found that Plaintiff’s First, Second, and Third Claims assert that
DPS’ online employment system violated his rights against national origin and religious
discrimination by subjecting him to extreme vetting which is governed by a formal
policy. (ECF No. 42 at 8.) Plaintiff’s Fourth Claim alleges that DPS subjected him to a
warrantless search by its “extreme vetting.” (Id.) Judge Hegarty found that “these
allegations, liberally construed, involve the same policy or custom underlying the online
application system.” (Id.) However, Judge Hegarty found that Plaintiff’s Third

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Claim—that DPS made false assertions and provided altered documents to the EEOC
during its investigation of Plaintiff’s Title VII claim—does not allege a municipal policy or
custom underlying DPS’s submission to the EEOC. Therefore, Judge Hegarty
recommended dismissing Plaintiff’s Third Claim.
In his Objection, Plaintiff contends that “[t]he underlying custom and policy that
propelled all Defendants (Sahli, Boasberg and DPS) to get this low, all link back to
Plaintiff’s described causal link that started when: Plaintiff[] identified as a Farsi bilingual
job applicant.” (ECF No. 48 at 9.) Plaintiff’s argument fails to counter Judge Hegarty’s
finding, because it does not allege that DPS had a policy or custom of submitting false
assertions and altered documents to the EEOC. Accordingly, the Court adopts Judge
Hegarty’s recommendation on this issue and dismisses Plaintiff’s Third Claim against
DPS.
Judge Hegarty’s Recommendation went on to consider whether Plaintiff’s First,
Second, Fourth, and Fifth Claims are plausible for a municipal liability claim. (ECF No.
42 at 9.) “Where a Plaintiff seeks to impose municipal liability on the basis of a single
incident, the Plaintiff must show the particular illegal course of action was taken
pursuant to a decision made by a person with authority to make policy decisions on
behalf of the entity being sued.” (ECF No. 42 at 9 (citing Moss v. Kopp, 559 F. 3d
1155, 1169 (10th Cir. 2009)).) Here, Judge Hegarty found that “[Plaintiff’s] allegations
identify only a single incident of discrimination—Defendant Sahli’s extreme vetting
based on national origin and religion—and, thus, [Plaintiff] must allege that the system
itself is illegal and was implemented by a person with authority to make policy decisions
on behalf of DPS.” (ECF No. 42 at 9.) Judge Hegarty recommended finding that
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Plaintiff “plausibly alleges the existence of a municipal policy sufficient to meet the first
requirement,” given that it is still early in the litigation and no discovery has occurred.
(Id. at 9–10.)
The Court agrees with Judge Hegarty’s recommendation on this issue and finds
that Plaintiff has plausibly alleged the existence of an illegal municipal policy.
The Recommendation next considered whether Plaintiff plausibly alleged that his
stated injuries were caused by the extreme vetting which resulted from information
obtained by DPS’s online employment application system. (Id. at 10.) To satisfy this
requirement, Plaintiff must “demonstrate a direct causal link between the municipal
action and the deprivation of federal rights.” (Id.) Judge Hegarty found that Plaintiff’s
allegations
do not demonstrate the alleged challenged practice—
profiling applicants for special investigation—is closely
related to DPS’s failure to hire him . . . . His baseless
assertion that ‘all of a sudden, out of nowhere, he got
rejected’ is insufficient to demonstrate that Sahli engaged in
‘extreme’ vetting of his application, particularly considering
the ranking he received following his in-person interview,
which contrary to [Plaintiff’s] contention, reflects he ranked
last (5 out of 5) of those selected for in-person interviews.

(Id. at 10–11.) Accordingly, Judge Hegarty recommended that Plaintiff’s First, Second,
Third, Fourth, and Fifth Claims for relief be dismissed against DPS. (Id. at 11–12.)
Plaintiff addresses this issue in his Objection. (ECF No. 48 at 1.) He explains
that “[i]n 2010, based on a baseless and totally made-up incident an arrest warrant
issued against the Plaintiff . . . . To clear his name, as a first step, few days later
Plaintiff presented himself for couple of hours at the Denver PD HQ (Sheriff Dep.) to be
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handcuffed, photographed, fingerprinted and then released with $500 bond. Short time
later, his case dismissed, when the accuser failed to show up for the hearing.” (Id. at
2.)
Plaintiff strongly believes by identifying himself as a Farsi/
Persian bilingual—Iranian—job applicant, this identification
flagged him in the Defendants’ online application system,
where Defendant Sahli, between 3rd to 10th of September
2015, with her position, access and authority, through
Colorado Dept. of Education database system, she
accessed and viewed Plaintiff’s sealed record . . . . Based
on Defendant Sahli’s unwarranted unsealing, which stated
as a dismissed case—not guilty of anything—he was
refused a perfectly matched and qualified job.

(Id.) The Court finds that Plaintiff’s claim that Defendant Sahli viewed Plaintiff’s sealed
arrest warrant prior to the interview and refused to hire him on that basis to be
speculative. However, even if true, the Court is not convinced that Sahli’s viewing of
Plaintiff’s arrest record constitutes a direct link between the alleged profiling for extreme
vetting and the rejection of his application for § 1983 purposes. Accordingly, the Court
adopts Judge Hegarty’s Recommendation concerning this issue and Plaintiff’s First,
Second, Third, Fourth, and Fifth Claims are dismissed against DPS.
C.

Individual Capacity Claims
In his Recommendation, Judge Hegarty found that Boasberg and Sahli are

entitled to qualified immunity with respect to Plaintiff’s claims and thus all claims
brought against them in their individual capacities should be dismissed.
When a Defendant asserts the defense of qualified immunity, the burden shifts
to the plaintiff to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d

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1101, 1107 (10th Cir. 2009). “The plaintiff must demonstrate on the facts alleged both
that the defendant violated his constitutional or statutory rights, and that the right was
clearly established at the time of the alleged unlawful activity.” Id. (citing Pearson v.
Callahan, 555 U.S. 223, 232 (2009)). The Supreme Court affords district courts the
discretion to decide “which of the two prongs of the qualified immunity analysis should
be addressed first in light of the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236; see also Christensen v. Park City Mun. Corp., 554 F.3d
1271, 1277 (10th Cir. 2009).
Judge Hegarty first considered whether plaintiff’s First, Second, Third, Fourth,
and/or Fifth Claims stated plausible violations of his constitutional rights.
A plaintiff cannot allege a violation of either procedural or substantive due
process if he does not first show that he has a protected property right. Potts v. Davis
Cnty., 551 F.3d 1188, 1192 (10th Cir. 2009) (citing Hyde Park Co. v. Santa Fe City
Council, 226 F.3d 1207, 1210 (10th Cir. 2000)). “Protected property interests arise, not
from the Constitution, but from state statutes, regulations, city ordinances, and express
or implied contracts.” Dill v. City of Edmond, Okla., 155 F.3d 1193, 1206 (10th Cir.
1998); see also O’Gorman v. City of Chicago, 777 F.3d 885, 890 (7th Cir. 2015) (same).
The Tenth Circuit has “recognized that ‘if state statutes or regulations place substantive
restrictions on a government actor’s ability to make personnel decisions, then the
employee has a property interest’ protected by the procedural due process clause.”
Potts, 551 F.3d at 1192 (quoting Hennigh v. City of Shawnee, 155 F.3d 1249, 1253
(10th Cir. 1998)).

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Plaintiff claims that his property interest in the PIE position arises from his
legitimate claim of entitlement to the position based on his having been ranked higher
than other candidates following the interviews. The Recommendation states that,
“[e]ven taking these allegations as true, [Judge Hegarty] rejects [Plaintiff’s] argument as
not supported by prevailing law. [Plaintiff] fails to identify any ‘rights’ he might have that
were ‘created by state statutes, state or municipal regulations or ordinances, or
contracts’ with DPS to be hired for the PIE positions. Moreover, he has alleged no
‘substantive restrictions on a DPS official’s ability to make personnel decisions’ with
respect to hiring for the PIE positions.” (ECF No. 42 at 13–14.) Thus, because Plaintiff
failed to show that “he possessed a protected property right in the PIE positions, [Judge
Hegarty] recommend[ed] that the District Court find Sahli and Boasberg are entitled to
qualified immunity for [Plaintiff’s] failure to state his due process claims and grant the
motion to dismiss [Plaintiff’s] First and Third Claims for relief against the Defendants.”
(Id. at 14.)
The Recommendation then considered Plaintiff’s Second Claim alleging
violations of his Fourteenth Amendment right to Equal Protection.
To state a claim for an equal protection violation, a plaintiff
must allege that a government actor intentionally
discriminated against him or her on the basis of a suspect
class. Lobato v. N.M. Env’t Dep’t, Envtl. Health Div., 838 F.
Supp. 2d 1213, 1223 (D.N.M. 2011) (citing Hayden v. Cnty.
of Nassau, 180 F.3d 42, 48 (2d Cir. 1999)); see also Ingram
v. Cooper, 163 F. Supp. 3d 1133, 1139 (N.D. Okla. 2016)
(“To establish a violation of the Equal Protection Clause, a
plaintiff must allege that a defendant acted with the intent to
discriminate against the plaintiff because of the plaintiff’s
protected status.”). Suspect classifications include those
based on national origin. Lobato, 838 F. Supp. 2d at 1223
(citing Edwards v. Valdez, 789 F.2d 1477, 1482 (10th Cir.
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1986)); Ingram, 163 F. Supp. 3d at 1139 (citing City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) and
Ramirez v. Dep’t of Corrs., 222 F.3d 1238, 1243 (10th Cir.
2000)).
(Id. at 15.)
Here, Judge Hegarty found that Plaintiff failed to allege the requisite intent. (Id.
at 16.) “[Plaintiff’s] allegations that Sahli engaged in ‘extreme’ vetting of [Plaintiff’s]
application through ‘access to various online databases’ have no foundation and are
merely speculative. [Plaintiff’s] other allegations, taken as true, demonstrate that DPS
officials selected [Plaintiff] for a telephone interview, a panel interview, and a final
interview with Sahli, all the while knowing that [Plaintiff] spoke ‘Farsi/Persian’ based on
his answer in the initial online application.” (Id.) Because Judge Hegarty found that
Plaintiff has failed to state an equal protection claim based on Plaintiff’s failure to
plausibly allege an intent to discriminate against the suspect class, he found that Sahli
and Boasberg were entitled to qualified immunity. Accordingly, he recommended that
the Court dismiss Plaintiff’s Second Claim.
The Recommendation next turned to Plaintiff’s Fourth Claim, which asserts a
Fourth Amendment warrantless search claim. “A search subject to Fourth Amendment
protection occurs ‘when the government violates a subjective expectation of privacy that
society recognizes as reasonable.’” Mimics, Inc. v. Village of Angel Fire, 394 F.3d 836,
842 (10th Cir. 2005) (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001)). “[E]xcept
in certain carefully defined classes of cases, a search of private property without proper
consent is ‘unreasonable’ unless it has been authorized by a valid search warrant.” Id.
(quoting Camara v. Mun. Ct., 387 U.S. 523, 528–29 (1967)).
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Here, Judge Hegarty found that “the allegations, taken as true, show only that
[Plaintiff] supposes that Sahli engaged in an ‘out-of-the-norm’ background check; the
allegations reflect no indication that such ‘extreme’ check actually occurred. [Plaintiff’s]
assertion that ‘all circumstantial evidence leads to Terri Sahli’s role and her access to
restricted databases to subject Plaintiff to extreme vetting’ is pure speculation and
insufficient to demonstrate that the ‘warrantless search’ [Plaintiff] alleges plausibly
occurred.” (Id. at 17 (emphasis in original).) Because Plaintiff failed to show that a
constitutional violation occurred, Sahli and Boasberg are entitled to qualified immunity
with respect to Plaintiff’s Fourth Claim. (Id.) Accordingly, Judge Hegarty recommended
that the Court dismiss Plaintiff’s Fourth Claim against Boasberg and Sahli. (Id.)
To conclude its analysis of Plaintiff’s individual capacity claims, the
Recommendation considered Plaintiff’s Fifth Claim, which alleges a violation of the First
Amendment Establishment Clause. To bring an Establishment Clause claim, a plaintiff
must have suffered injury because of alleged government action coercing him to
practice any particular religion or tending in any way to create a state-endorsed
religious faith.” Lee v. Weisman, 505 U.S. 577, 587 (1992). Standing under the
Establishment Clause may exist when a Plaintiff’s injuries result from religious bias or
endorsement, such as being “subjected to unwelcome religious exercises or [being]
forced to assume special burdens to avoid them.” Valley Forge Christian Coll. v.
Americans United for Separation of Church & State, Inc. , 454 U.S. 464, 472 n.22
(1982).
Here, Judge Hegarty found that “[Plaintiff’s] allegation that ‘Defendants’ conduct

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in identifying and classifying job applicants from Muslim[ ] Middle East and African
countries for extreme vetting clearly shows, under color of law, the depth of animus
against this class of people’ is conclusory and lacks any foundation. In addition, the
allegations taken as true reflect that the online employment application system requests
whether the applicant is bilingual in the following languages—Arabic, Amharic, Somali,
and Swahili—which, [Plaintiff] admits, includes at least one language for which the
general population is not Muslim (Amharic).” (Id. at 18 (quoting ECF No. 26 ¶ 22).)
Accordingly, Judge Hegarty found that Plaintiff failed to state a constitutional violation
and thus, Defendants are entitled to qualified immunity. He therefore recommended
that Plaintiff’s Fifth Claim be dismissed against Defendants.
Plaintiff does not address qualified immunity at all in his Objection. 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.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); see
also Fed. R. Civ. P. 72(b) advisory committee’s note (“When no timely objection is filed,
the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.”). The Court concludes that the
Recommendation’s analysis was thorough and sound, and that there is no clear error
on the face of the record. Accordingly, the Court adopts Judge Hegarty’s
Recommendation with respect to Plaintiff’s First, Second, Third, Fourth, and Fifth
Claims brought against Defendants Boasberg and Sahli in their individual capacities.
D.

Title VII Claim

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To establish a prima facie case for a failure-to-hire claim, a plaintiff must
establish that “(1) [he] belongs to a protected class; (2) [he] applied and was qualified
for a job for which the employer was seeking applicants; (3) despite being qualified, [he]
was rejected; and (4) after [his] rejection, the position remained open and the employer
continued to seek applicants from persons of [his] qualifications.” Fischer v.
Forestwood Co., Inc., 525 F.3d 972, 982–83 (10th Cir. 2008). In this Circuit, w here
appropriate, the fourth requirement may be established by showing that “the defendant
hired other persons possessing [the plaintiff’s] qualifications who were not members of
his protected class.” Roberts v. Okla., 110 F.3d 74, 1997 WL 163524, at *4 (10th Cir.
Apr. 8, 1997). If the plaintiff makes out a prima facie case, “[t]he burden then shifts to
the defendant to produce a legitimate, non-discriminatory reason for the adverse
employment action.” Id. If DPS meets that burden, “the burden then shif ts back to the
plaintiff to show that [his] protected status was a determinative factor in the employment
decision or that the employer’s explanation is pretext.” Id.
Here, Judge Hegarty found “that [Plaintiff] plausibly allege[d] the first, second,
and third requirements of a prima facie case: (1) [Plaintiff’s] national origin is Iranian;
(2) he applied for and was qualified for the PIE positions (based on the allegations that
he was selected for three interviews with DPS officials); and (3) despite his
qualifications, [Plaintiff] was not selected for hire.” (ECF No. 42 at 20.) As to the fourth
requirement, “[r]egarding whether the hired candidates were ‘not members of his
protected class,’ the allegations in this case, taken as true, reflect that DPS hired a ‘28year-old Asian male’ [(‘T’)] and a ‘29-to-33-year old’ female, Ashley S., for the open PIE

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positions.” (ECF No. 42 at 21.) Judge Hegarty found that Plaintiff failed to demonstrate
plausibly that Ashley S. is not Iranian. (Id.) The Recommendation also noted, however,
that Plaintiff had twice as much work experience as T, who was selected, and both
Plaintiff and T received similar interview scores. (Id.) Thus, construing the allegations
liberally and taking them as true, the Recommendation found that Plaintiff had stated
the elements of a Title VII failure-to-hire claim by showing that DPS had allegedly
selected T rather than Plaintiff based on Plaintiff’s national origin. (Id. at 22.)
Accordingly, Judge Hegarty recommended that the Court deny the Motion to Dismiss
with respect to Plaintiff’s Title VII claim as it relates to the DPS’s selection of T for hire.
In his Objection, Plaintiff stated that he “confirms Ashley S. [] is not Iranian. She
is Caucasian, American born of European descent.” (ECF No. 48 at 3.) However, he
does not specifically object to Judge Hegarty’s analysis or findings regarding the Title
VII claim. Nor, importantly, did Defendants file any objection regarding the
recommended denial of their Motion to Dismiss with respect to Plaintiff’s Title VII claim.
Accordingly, “the district court may review the magistrate . . . [judge’s] report under any
standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.
1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also Fed. R. Civ. P. 72(b)
advisory committee’s note ("When no timely objection is filed, the court need only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation."). The Court concludes that Judge Hegarty’s analysis was thorough
and sound, and that there is no clear error on the f ace of the record. Therefore, the
Court adopts Judge Hegarty’s Recommendation regarding Plaintiff’s Title VII claim and

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denies Defendants’ Motion to Dismiss with respect to this claim.1
Accordingly, Judge Hegarty’s Recommendation is adopted in its entirety,
Plaintiff’s Objection is overruled, and Defendants’ Motion to Dismiss is granted with
respect to Plaintiff’s § 1983 claims against all Defendants and denied with respect to
Plaintiff’s Title VII claims against DPS.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Plaintiff’s Objection to the Recommendation of United States Magistrate Judge
(ECF No. 48) is OVERRULED;

2.

The Recommendation of United States Magistrate Judge (ECF No. 42) is
ADOPTED in its entirety;

3.

Defendants’ Motion to Dismiss (ECF No. 29 is GRANTED IN PART and DENIED
IN PART, as follows:
a.

Defendants’ Motion to Dismiss Amended Complaint (ECF No. 29) is
GRANTED with respect to Plaintiff’s First, Second, Third, Fourth, and Fifth
Claims with prejudice;

b.

Defendants Boasberg and Sahli are dismissed from the litigation; and

c.

Defendants’ Motion to Dismiss Amended Complaint (ECF No. 29) is
DENIED with respect to Plaintiff’s Title VII Claim against Defendant DPS.

1

To be clear, the Court neither adopts nor rejects Judge Hegarty’s analysis with regard
to “Ashley S.” because the Court reads that analysis as immaterial to his overall
Recommendation on this claim. The important point here is that the Title VII claim will go
forward.

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Dated this 30th day of March, 2018.
BY THE COURT:

William J. Martínez
United States District Judge

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