Vazirabadi v. Boasberg et al

Filing 84

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Michael E. Hegarty on 8/3/2018 re 68 Partial MOTION to Dismiss Second Amended Complaint filed by Denver Public Schools. (tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01194-WJM-MEH
ALIREZA VAZIRABADI,
Plaintiff,
v.
DENVER PUBLIC SCHOOLS, (“DPS”), as Employer, JOHN and JANE DOE
CORPORATIONS 1 THROUGH 10, and OTHER JOHN DOE ENTITIES 1 THROUGH 10 all
whose true names are unknown,
Defendants.
______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________________
Michael E. Hegarty, United States Magistrate Judge.
Defendant Denver Public Schools (“DPS”) seeks to dismiss Plaintiff Alireza Vazirabadi’s
claim for violation of the Age Discrimination in Employment Act (“ADEA”). Because Mr.
Vazirabadi has made a prima facie showing of age discrimination, I respectfully recommend that
the Honorable William J. Martinez deny the motion.
BACKGROUND
I.

Facts
The following are relevant factual allegations, which I take as true for analysis under Fed.

R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 1
Mr. Vazirabadi is a fifty-five-year-old, Iranian-American citizen residing in Aurora,
Colorado. Second Am. Compl. ¶ 1, ECF No. 67. On August 3, 2015, when Mr. Vazirabadi was

1

Since DPS moves to dismiss only Mr. Vazirabadi’s ADEA claim, I do not include facts specific
to his Title VII claim.
1

fifty-two years old, id. ¶ 42, he applied for DPS’ process improvement engineer (“PIE”) position.
Id. ¶ 19. Mr. Vazirabadi had more than ten years of direct experience. Id.
Mr. Vazirabadi had a phone interview with the DPS hiring manager, who informed him
that he was being considered for two identical PIE positions. Id. ¶ 23. He then had a panel
interview with the DPS hiring manager and three process improvement team members. Id. ¶ 24.
Finally, Mr. Vazirabadi met with DPS’ director of enterprise risk management and process
improvement. Id. ¶ 26.
On September 23, 2015, DPS informed Mr. Vazirabadi that it had chosen other
candidates for the PIE vacancies. Id. ¶ 27. The applicants who received the job offers were a
man in his late twenties and a woman in her early thirties. Id. ¶ 15. At the time of hiring, both
candidates had five years of experience. Second Am. Compl. Ex. 8.
II.

Procedural History
On October 20, 2015, Mr. Vazirabadi filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”). Second Am. Compl. ¶ 9, ECF No. 67. On March 6, 2017,
Mr. Vazirabadi received a right to sue letter from the EEOC. Second Am. Compl. Ex. 1, ECF
No. 67. Proceeding pro se, Mr. Vazirabadi filed the present case on May 15, 2017. Compl.,
ECF No. 1.
On May 14, 2018, Mr. Vazirabadi filed a Second Amended Complaint, which asserts
Title VII and ADEA claims. Second Am. Compl., ECF No. 67. In his ADEA claim, Mr.
Vazirabadi alleges that DPS discriminated against him by hiring two applicants who are under
the age of forty and have less experience. Id. ¶¶ 41–46. Mr. Vazirabadi further asserts that DPS
deliberately made a false statement to the EEOC by claiming that one of the chosen candidates
was over the age of forty when she was actually in her early thirties. Id. ¶ 44.

2

DPS filed the present Partial Motion to Dismiss on May 29, 2018. Partial Mot. to
Dismiss, ECF No. 68. DPS argues that the ADEA claim should be dismissed, because Mr.
Vazirabadi fails to plead facts establishing age as a “but-for” cause of DPS’ decision not to hire
him. Id. at 4–6. Mr. Vazirabadi responds by reiterating his allegation that DPS deliberately
made false statements to the EEOC. Resp. to Partial Mot. to Dismiss ¶ 3, ECF No. 71. In its
reply brief, DPS asserts that Mr. Vazirabadi failed to refute and thus concedes its but-for
causation argument. Reply in Supp. of Partial Mot. to Dismiss 1–3, ECF No. 73. DPS further
contends that its EEOC response has no bearing on Mr. Vazirabadi’s ADEA claim. Id. at 3–4.
On July 5, 2018, Mr. Vazirabadi filed an opposed Motion for Leave to File a Surreply,
ECF No. 77. DPS responded on July 13, 2018. ECF No. 80. 2
LEGAL STANDARDS
I.

Fed. R. Civ. P. 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which
allow “the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Twombly requires a two-prong analysis. First, courts must identify “the allegations
in the complaint that are not entitled to the assumption of truth,” that is, those allegations which
are legal conclusions, bare assertions, or merely conclusory. Id. at 678–80. Second, courts must
consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.”

2

I find that Mr. Vazirabadi states a plausible claim for relief without considering the arguments
he makes in his surreply.
3

Id. at 681. If the allegations state a plausible claim for relief, the claim survives the motion to
dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general
that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not
nudged their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines,
671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th
Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will
vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir.
2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima
facie case in a complaint, the elements of each alleged cause of action may help to determine
whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide
“more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause
of action,” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual
allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct,” the complaint has made an allegation, “but it has
not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).

4

II.

Treatment of a Pro Se Plaintiff’s Complaint
A pro se plaintiff’s “pleadings are to be construed liberally and held to a less stringent

standard than formal pleadings drafted by lawyers . . . .” Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991)). “Th[e] court, however, will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on plaintiff’s behalf.” Smith v. United States,
561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173–74
(10th Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a court “can reasonably read
the pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so despite
the plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his
poor syntax and sentence construction, or his unfamiliarity with pleading requirements.”
Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110).
However, this interpretation is qualified in that it is not “the proper function of the district court
to assume the role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall,
935 F.2d at 1110).
ANALYSIS
After briefly discussing Mr. Vazirabadi’s failure to respond to DPS’ but-for causation
argument, I find that Mr. Vazirabadi has made a prima facie showing of age discrimination.
As an initial matter, DPS contends that Mr. Vazirabadi failed to refute and thus concedes
its but-for causation argument. Reply in Supp. of Partial Mot. to Dismiss 1–3, ECF No. 73.
However, the Tenth Circuit has explained that a “district court may not grant a 12(b)(6) dismissal
based solely on the plaintiff’s failure to respond.” Persik v. Manpower Inc., 85 F. App’x 127,
130 (10th Cir. 2003) (unpublished). Rather, a district court “must still examine the allegations in

5

the plaintiff’s complaint and determine whether the plaintiff has stated a claim upon which relief
can be granted.” Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003). As such, dismissing
Mr. Vazirabadi’s claim based solely on his failure to respond directly to this argument would be
improper.
Under the ADEA, it is “unlawful for an employer to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” 29 U.S.C. §
623(a)(1). To establish a prima facie case of age discrimination under a “failure-to-hire” theory,
the plaintiff must show:
(1) that he belongs to the protected class, (2) that he applied for and was qualified
for the job, (3) that despite his qualifications he was rejected, and (4) that the
employer either ultimately filled the position with someone sufficiently younger
to permit an inference of age discrimination or continued to seek applicants from
among those having [plaintiff’s] qualifications.
Lewis v. McDonnell Douglas Corp., 77 F.3d 492, at *3 (10th Cir. 1996) (Table); Coe v. Yellow
Freight Sys., Inc., 646 F.2d 444, 448–49 (10th Cir. 1981). Additionally, to ultimately succeed on
such a claim, the plaintiff “must prove by a preponderance of the evidence . . . that age was the
‘but-for’ cause of the challenged employer decision.” Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 176 (2009).
However, a plaintiff need not plead a prima facie claim to survive a motion to dismiss.
Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012); Adenowo v. Denver Pub. Sch.,
No. 14-CV-02723-RM-MEH, 2015 WL 4511924, at *4 (D. Colo. June 17, 2015) (finding that “a
prima facie argument for but-for causation proving an ADEA claim need not be met at the
pleading stage”), report and recommendation adopted, No. 14-CV-02723-RM-MEH, 2015 WL
4504931 (D. Colo. July 24, 2015). Nevertheless, “the elements of each alleged cause of action
help to determine whether Plaintiff has set forth a plausible claim.” Khalik, 671 F.3d at 1191.
6

By satisfying the elements of a prima facie ADEA claim, Mr. Vazirabadi has surpassed
his burden at the pleading stage. When he applied for the DPS positions, Mr. Vazirabadi was
fifty-two years old and thus within a protected class. Second Am. Compl. ¶ 42, ECF No. 67.
Construing the Second Amended Complaint liberally, Mr. Vazaribadi’s claim that he had the
highest ratings for experience and interviews pleads that he was qualified for the positions. Id. ¶
15. Despite his qualifications, DPS rejected his application. Id. ¶ 27. DPS filled the vacancies
with a man in his late twenties and a woman in her early thirties. Id. ¶ 15. Since both of these
individuals are sufficiently younger than Mr. Vazirabadi, an inference of age discrimination
arises. Lewis, 77 F.3d 492, at *3.
Mr. Vazirabadi’s allegations also satisfy the but-for element of a prima facie claim. In
addition to the hired individuals being significantly younger, Mr. Vazirabadi alleges they had
substantially less experience than he. Id. ¶ 43. At the pleading stage, this is sufficient to state a
claim. See Daviss v. Sch. Dist. No. 1, No. 14-CV-00795-CMA-KMT, 2015 WL 5315615, at *4
(D. Colo. Aug. 24, 2015) (holding that the plaintiffs’ allegations of being terminated and
replaced by significantly younger employees satisfied the but-for causation requirement), report
and recommendation adopted, No. 14-CV-00795-CMA-KMT, 2015 WL 5308004 (D. Colo.
Sept. 11, 2015); Poore v. Peterbilt of Bristol, L.L.C., 852 F. Supp. 2d 727, 730 (W.D. Va. 2012)
(holding that the plaintiff’s claim alleging he was terminated and replaced with a younger, lessexperienced individual satisfied pleading standards).
In support of its partial motion to dismiss, DPS relies on Steele v. Stallion Rockies Ltd,
106 F. Supp. 3d 1205 (D. Colo. 2015), in which the court dismissed the plaintiff’s ADEA claim.
Partial Mot. to Dismiss 6, ECF No. 68. The Steele plaintiff’s claim had only two allegations:
“(1) in 2011, [plaintiff] observed he was one of the oldest workers at the facility, and (2) prior to

7

his termination, unidentified coworkers (i.e., not a decisionmaker) made ‘offensive comments’
regarding his age.” Steele, 106 F. Supp. 3d at 1211. The current case is distinguishable from
Steele, because Mr. Vazirabadi alleges that a decisionmaker—not a coworker—discriminated
against him by hiring two significantly younger candidates with less experience. Second Am.
Compl. ¶¶ 41–46.
DPS also asserts that the court should dismiss Mr. Vazirabadi’s ADEA claim, because his
“allegations made clear that factors other than age influenced the final employment decision.”
Partial Mot. to Dismiss 6. But the Tenth Circuit has indicated that age need not be the sole
motivating factor in an employment decision. Jones v. Okla. City Pub. Sch., 617 F.3d 1273,
1277 (10th Cir. 2010).

Rather, an “employer may be held liable under the ADEA if other

factors contributed to its taking an adverse action, as long as ‘age was the factor that made a
difference.’” Id. (quoting Wilkerson v. Shinseki, 606 F.3d 1256, 1266 (10th Cir. 2010)). Thus,
Mr. Vazirabadi’s allegation that other factors contributed to DPS’ hiring decision is not fatal to
his ADEA claim at the pleading stage.
To be sure, DPS’ arguments might prevail at a later stage of this litigation. However, at
this point, particularly when construing Mr. Vazirabadi’s pleadings liberally and holding them
“to a less stringent standard than formal pleadings drafted by lawyers,” Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991), I recommend that DPS’ Partial Motion to Dismiss be denied.
CONCLUSION
Although a close call, Mr. Vazirabadi has made a prima facie showing of age
discrimination, which is more than sufficient to survive a motion to dismiss. Accordingly, I

8

respectfully recommend that DPS’ Partial Motion to Dismiss [filed May 29, 2018; ECF No. 68]
be denied. 3
Dated and Entered at Denver, Colorado, this 3rd day of August, 2018.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

3

Be advised that all parties shall have fourteen days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those
findings or recommendations to which the objections are being made. The District Court need
not consider frivolous, conclusive or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676–83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen days after being served with a copy may bar the aggrieved
party from appealing the factual and legal findings of the Magistrate Judge that are accepted or
adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)
(quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
9