Desai v. Panguitch Main St, et al

Filing 191

MEMORANDUM DECISION finding as moot 139 Motion ; finding as moot 140 Motion for Protective Order; granting 153 Motion for Summary Judgment ; finding as moot 157 Motion ; finding as moot 167 Motion ; finding as moot [169 ] Motion ; finding as moot 177 Motion for Hearing; finding as moot 181 Motion to Quash; finding as moot 187 Motion to Quash. The final pretrial conference scheduled for November 14, 2012, and the three-day bench trial scheduled to begin on November 27, 2012, are hereby STRICKEN. This case is closed. Signed by Judge Dale A. Kimball on 11/8/12. (jlw)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

HARSHAD P. DESAI,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.
Case No. 2:04cv691
PANGUITCH MAIN STREET, INC. and
PANGUITCH CITY CORPORATION,
Defendant.

District Judge Dale A. Kimball

Before the court is Panguitch Main Street, Inc. (“Main Street”) and Panguitch City
Corporation’s (“City”) (collectively, “Defendants”) motion for summary judgment.1 The court
has carefully reviewed the motion, memoranda, and other materials submitted by the parties and
has considered the law and facts relevant to the motion. Now being fully advised, the court
enters the following Memorandum Decision and Order.
As an initial matter, the court notes that Harshad P. Desai (“Plaintiff”) is proceeding pro
se in this case. Accordingly, the court will construe his pleadings and other submissions
liberally. See, e.g., Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th Cir. 2003). At the
same time, however, it is not “the proper function of the district court to assume the role of
advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

1

See docket no. 153.

I. BACKGROUND
A. Facts2
In July 2003, Plaintiff, a Hindu immigrant from India residing in Panguitch, Utah, applied
for an open position as the manager of Main Street (“Main Street Manager”). As stated in the
advertisement for the position, potential applicants must “be self-motivated, have a background
in business, [possess] good writing and computer skills, [and they] must work well with the
public.”3 Main Street received three applications, including Plaintiff’s. On August 24, 2003,
Plaintiff was interviewed by members of the Main Street board. On September 10, 2003,
Plaintiff was informed that another applicant was selected. The hiring committee determined
that Sal Luca was “the most prepared and capable of assuming the responsibilities of Main Street
Manager.”4
On September 25, 2003, Plaintiff filed a complaint against Defendants for employment
discrimination with the Utah Antidiscrimination and Labor Division (“UALD”). The UALD
transferred Plaintiff’s administrative case to the Equal Employment Opportunity Commission
(“EEOC”). Plaintiff received a Notice of Right to Sue from the EEOC dated April 27, 2004, and

2

The facts are taken from Defendants’ memorandum in support of their motion for
summary judgment, as well as the original and amended complaints. Under the local rules, all
material facts “set forth with particularity in the statement of the movant will be deemed admitted
for the purpose of summary judgment, unless specifically controverted by the statement of
[material facts] of the opposing. See DUCivR 56-1(c). In this case, Plaintiff failed to specifically
controvert Defendants’ facts and, as such, Defendants’ facts are deemed admitted.
3

Docket no. 154, Exhibit A, at 2.

4

Id.
2

on July 28, 2004,5 Plaintiff filed the instant case in this court against Defendants. Plaintiff
alleges that Defendants failed to hire him on the basis of his race, color, religion, and national
origin in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(a)(1).
In July 2004, Mr. Luca left the position, and Main Street again advertised for a new Main
Street Manager. Prospective applicants were to have a “diverse background” through education
and/or experience in at least one of the following areas: “Historic Preservation, Planning,
Economic Development, Volunteer Management, Non-Profit Management and Small Business
Recruitment/Development.”6 Applicants were also required to “be Self-Motivated and Work
Well with Diverse Personalities.”7 Plaintiff and four other individuals applied for the Main
Street Manager position. While the hiring committee considered Plaintiff for the position along
with the other applicants, Plaintiff was not interviewed again because he had been interviewed
less than a year earlier. By letter dated July 29, 2004, Main Street informed Plaintiff that he was
not selected for the position. The hiring committee hired an out-of-state applicant from
California, Jess Johnson, for the position because of her background and experience in education,

5

The court notes that while the Clerk of Court received and lodged the original complaint
on July 28, 2004, Plaintiff’s motion to proceed in forma pauperis was not ruled upon until
August 20, 2004. As such, Plaintiff’s complaint was not filed in the docket until September 9,
2004. However, the court will treat the filing date as July 28, 2004. See, e.g., Jarrett v. U.S.
Sprint Comm. Co., 22 F.3d 256, 259 (10th Cir. 1994).
6

Docket no. 154, Exhibit A, at 3.

7

Id.
3

entrepreneurial development, recruitment and small business management, non-profit
organizations, and grant writing.
Plaintiff again filed claims for employment discrimination against Defendants with the
UALD and the EEOC. Plaintiff was issued Notices of Right to Sue by (1) the EEOC on August
12, 2009, for Main Street; and (2) the United States Department of Justice on December 9, 2009,
for the City. And, on April 4, 2011, Plaintiff filed an amended complaint.8
B. Procedural History
As noted above, Plaintiff filed his original complaint against Defendants on July 28,
2004.9 On December 16, 2004, the court granted Plaintiff’s motion to continue the matter until
March 7, 2005.10 The original scheduling order was issued on April 11, 2005.11 From that date
until November 1, 2006, Plaintiff attempted to conduct discovery on his claims, and the court
ruled on several discovery motions.12 On January 31, 2007, the court granted Plaintiff’s motion
to stay the case until April 1, 2007, so that Plaintiff could travel to India to care for his ailing
mother.13

8

See docket no. 119. The court notes that Plaintiff’s amended complaint was notarized
on and dated March 24, 2011.
9

See docket no. 3.

10

See docket no. 14.

11

See docket no. 18.

12

See docket nos. 21, 22, 23, 26, 29, 30, 31, 32, 39, 40, 41, 51, 52, 54, 55, 56, and 57.

13

See docket no. 58.
4

On August 7, 2007, the court issued an order to show cause14 that directed Plaintiff to
inform the court of the status of the case, to which Plaintiff replied August 17, 2007.15 In that
response, Plaintiff indicated that there were two additional administrative cases pending against
Defendants that were nearly identical to the original complaint. The court granted Plaintiff’s
motion to stay the case until October 1, 2008, as Plaintiff expected his administrative cases to be
completed by then.16
Believing the administrative process was nearly complete, the court lifted the stay on
December 10, 2008, and instructed the parties to attempt to stipulate to an amended scheduling
order.17 On December 30, 2008, the court issued an amended scheduling order that set a
three-day jury trial to begin in November 2009.18 However, because the administrative cases
were not yet final, the court again vacated the scheduling order and stayed the case pending the
exhaustion of Plaintiff’s administrative remedies.19 In that order, the court instructed Plaintiff to
file a motion to lift the stay and amend the complaint upon receiving both notices of his right to
sue.

14

See docket no. 59.

15

See docket no. 60.

16

See docket no. 62.

17

See docket no. 65.

18

See docket no. 68.

19

See docket no. 85.
5

On June 7, 2010, the court ruled on numerous motions filed by Plaintiff.20 In that order,
the court lifted the stay and noted that Plaintiff had provided right to sue letters issued by (1) the
EEOC dated August 12, 2009, and (2) the United States Department of Justice dated December
9, 2009. The court informed Plaintiff that he could seek leave to amend his complaint but that he
must do so by July 16, 2010. Between July 6 and July 15, Plaintiff filed four motions for leave to
amend his complaint.21 The court granted Plaintiff’s motions and instructed Plaintiff to file an
amended complaint no later than March 31, 2011, that set forth every cause of action Plaintiff
believed he had against Defendants.22
On April 4, 2011, Plaintiff filed an amended complaint, although it was dated and
notarized on March 24, 2011.23 Plaintiff filed several motions and other documents between
April 4 and November 30, 2011, as well as another motion to continue all proceedings through
March 1, 2012.24 On December 14, 2011, the court ruled on all pending motions and set a status
conference for March 9, 2012.25 At the hearing, the court ordered limited additional discovery

20

See docket no. 105.

21

See docket nos. 106, 107, 109, and 112.

22

See docket no. 116.

23

See docket no. 119.

24

See docket nos. 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, and 133.

25

See docket no. 134.
6

and indicated that a final scheduling order would be forthcoming.26 On March 12, 2012, the
court issued the final scheduling order.27
II. DISCUSSION
A. Summary Judgment Standard
Defendants filed a motion for summary judgment under rule 56 of the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 56(c). “Summary judgment is appropriate if the record
shows that there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” True v. United States, 190 F.3d 1165, 1171 (10th Cir. 1999)
(quotations and citation omitted). Under this standard, “[a] fact is material if under the
substantive law it could have an effect on the outcome of the lawsuit.” Adams v. Am. Guar. &
Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (quotations and citation omitted). “An issue
is ‘genuine’ if ‘a rational jur[or] could find in favor of the nonmoving party on the evidence
presented.’” Id. (alteration in original) (quoting EEOC v. Horizon/CMS Healthcare Corp., 220
F.3d 1184, 1190 (10th Cir. 2000)). In reviewing a motion for summary judgment, the court
“view[s] the factual record and draw[s] any reasonable inferences therefrom in the light most
favorable to the nonmoving party.” Id.
At the summary judgment stage, while evidence need not be presented in a form that
would be admissible at trial, “the content or substance of the evidence must be admissible.”

26

See docket no. 136.

27

See docket no. 138.
7

Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006) (quotations
and citation omitted). Plaintiff “must still identify sufficient evidence requiring submission to
the jury.” Turner v. Public Servs. Co. of Colo., 563 F.3d 1136, 1142 (10th Cir. 2009) (quotations
and citation omitted). “[He] cannot avoid summary judgment merely by presenting a scintilla of
evidence to support [his] claim; [he] must proffer facts such that a reasonable jury could find in
[his] favor.” Id.
B. Defendants’ Statute of Limitations Argument
As an initial matter, Defendants argue that Plaintiff’s claims related to the 2004 position
fail as a matter of law because he did not file suit within 90 days of receiving notices of his right
to sue. Specifically, Defendants contend that Plaintiff should have filed his amended
complaint(s) by November 12, 2009, and/or March 9, 2010, and because he did not file until
April 4, 2011, the claims related to the 2004 position should be dismissed.
“Compliance with the filing requirements of Title VII is not a jurisdictional prerequisite,
rather it is a condition precedent to suit that functions like a statute of limitations and is subject to
waiver, estoppel, and equitable tolling.” Million v. Frank, 47 F.3d 385, 389 (10th Cir. 1995).
While the court recognizes that Plaintiff did not file his amended complaint within the 90-day
period, it concludes that equitable tolling is undoubtedly appropriate in this case. See Carlile v.
S. Routt Sch. Dist., 652 F.2d 981, 986 (10th Cir. 1981) (“Equitable tolling might be appropriate
. . . where a plaintiff has been lulled into inaction by . . . the courts.”); see also Montoya v. Chao,
296 F.3d 952, 957 (10th Cir. 2002). In several orders noted above, the court indicated its
willingness to permit Plaintiff to amend his complaint to include claims related to the 2004
8

position upon exhaustion of his administrative remedies. Within days of receiving the notices of
his right to sue, Plaintiff filed pleadings requesting that the court consolidate the administrative
cases into his federal lawsuit,28 as well as a motion to lift the final stay.29 In the order granting
Plaintiff’s motion to lift the stay, the court instructed Plaintiff to file a motion for leave to amend
his complaint by July 16, 2010,30 and Plaintiff did so on July 6, 8, and 15, 2010.31 In another
order, the court instructed Plaintiff to file his amended complaint by March 31, 2011.32 Plaintiff
did so on April 4, 2011.33
While Plaintiff’s amended complaint was technically filed four days late, the court again
notes that the amended complaint was notarized on and dated March 24, 2011. In light of the
fact that Plaintiff is proceeding pro se, he has been steadfastly diligent in attempting to comply
with the court’s orders, as well as the Federal Rules of Civil Procedure. Accordingly, the court
concludes that granting summary judgment as to Plaintiff’s claims related to the 2004 position on
a technicality would be inappropriate. As such, the court will examine the claims related to both
the 2003 and 2004 positions under Title VII.

28

See docket nos. 83 and 91.

29

See docket no. 93.

30

See docket no. 105.

31

See docket nos. 106, 107, 109 and 112.

32

See docket no. 116.

33

See docket no. 119.
9

C. Title VII Analysis
In his amended complaint, Plaintiff alleges that by failing to hire him, Defendants
violated Title VII on the basis of his race, color, religion, and national origin. See 42 U.S.C.
§ 2000e-2(a)(1). Plaintiff set forth the following purported causes of action against Defendants:
(1) “discrimination”; (2) “violation of Plaintiff’s constitutional rights”; (3) “violation of federal’s
[sic] affirmative action law”; (4) “racism”; (5) “Defendants are engaged in slandering”; (6)
“Defendants are engaged in malice”; (7) “Defendants are engaged in harassment (targeting,
infringement upon rights, egoism, arrogance, obstruction of justice, intimidation, pusedo [sic]
authority, etc.)”; (8) “systematic approach (indirect but clear thru long term performance
approach) to push certain kind of people (educated, people who exercise rights, ask questions,
diversity with diverse background, etc.) out of community based on personal disliking, gains,
etc.”; (9) “Defendants are engaged in perjury”; (10) “inefficiency leading personal gains at
citizens’ cost”; (11) “bullying”; and (12) “requirement is ‘one of them.’”34 The court will
construe (1), (2), (3), (4), (7), and (11) above as claims for employment discrimination under
Title VII and will address the remaining causes of action in part II.D below.
A plaintiff bringing a Title VII discrimination claim may prove intentional discrimination
by direct or circumstantial evidence. See Sanders v. Sw. Bell Tel., L.P., 544 F.3d 1101, 1105
(10th Cir. 2008). In cases “[w]here, as here, an [individual’s] . . . discrimination claim relies
exclusively on circumstantial, rather than direct, evidence, [the court] appl[ies] the burden-

34

Docket no. 119 at 6-12.
10

shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 [(1973)].”
Timmerman v. United States Bank N.A., 483 F.3d 1106, 1113 (10th Cir. 2007).
Under the McDonnell Douglas analysis, a plaintiff “‘bears the initial burden of setting
forth a prima facie case of discrimination.’” Sanders, 544 F.3d at 1105 (quoting Sanchez v.
Denver Pub. Sch., 164 F.3d 527, 531 (10th Cir. 1998)). “After the plaintiff makes a prima facie
case, the burden shifts to the employer to give a legitimate, nondiscriminatory reason for its
employment decision.” Id. “If the employer comes forward with a nondiscriminatory reason for
its actions, the burden then reverts to the plaintiff to show that there is a genuine dispute of
material fact as to whether the employer’s proffered reason for the challenged action is
pretextual–i.e., unworthy of belief.” Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
A successful showing of pretext “enables a plaintiff to survive summary judgment.”
Timmerman, 483 F.3d at 1113. But a plaintiff must prove both his prima facie case and pretext
by a preponderance of the evidence. See Jaramillo v. Colo. Judicial Dep’t, 427 F.3d 1303, 1307
(10th Cir. 2005) (en banc) (per curiam) (pretext); Horizon, 220 F.3d at 1191 (prima facie case).
The court will now determine whether Plaintiff’s amended complaint establishes a prima facie
case of employment discrimination.
(1) Plaintiff’s Prima Facie Case
Under Title VII, to demonstrate a prima facie case of disparate treatment in the failure to
hire context, Plaintiff must demonstrate 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 he was rejected, “the position remained open and the
11

employer continued to seek applicants from persons of [Plaintiff’s] qualifications.” Garrison v.
Gambro, Inc., 428 F.3d 933, 937 (10th Cir. 2005) (quotations and citation omitted). Plaintiff has
clearly satisfied the first and third prongs of the prima facie case, and Defendants do not dispute
that. Defendants, however, argue that Plaintiff has failed to satisfy the second and fourth prongs
of the prima facie test.
The court agrees and concludes that Plaintiff has not demonstrated that he was qualified
for the position or that the position remained open and Defendants continued to seek applications
after Plaintiff was rejected. First, Plaintiff has not shown that he possesses one of the
requirements for the position, namely to work well with the public, governmental entities, and/or
diverse personalities. As described by Defendants, Plaintiff publically accused the City and its
employees of embezzlement, bribery, and general dishonesty, and he had various disputes with
other local business owners and entities, all prior to filing this action. Rather than attempting to
demonstrate that he does work well with others, Plaintiff argues that Defendants hold their
“position without any details, merit, validity, evidence, back up,” and that “[t]his is slandering
(felony?).”35 Plaintiff contends that during these alleged disputes, he “never yelled, screamed,
point gun, own gun” and that he merely “engaged in accessing public records, inquiring, asking
when policy, enforcement, etc; reflected double standard, exercised rights, etc.”36 In addition,

35

Docket no. 156 at 12.

36

Docket no. 119 at 28-29.
12

Plaintiff’s cover letter for the 2004 position states that working well with diverse personalities “is
rarely available in this rural, remote, highly underexposed area which I have.”37
Furthermore, while Plaintiff is a local motel owner and has experience running a small
business, his resume does not demonstrate experience running a public entity or public program,
nor has Plaintiff established that he is qualified to do so. Although Plaintiff is highly educated
with masters degrees in Plastics Engineering and Organic Chemistry, his employment experience
includes working for companies that produce flooring products, paint, and automotive refinishing
products. In his cover letter for the position, Plaintiff indicates that he has experience in historic
preservation because he “turned boarded up (>10 years) eye shore [sic] historic property into cash
cow for local governments. When [he] first moved in this community, there were people who
said that Marianna Inn was bulldoseable [sic]. Now after 10 years, people love to drive in and
look around.”38 Based on the foregoing, the court concludes that Plaintiff has not demonstrated
that he was qualified for the Main Street Manager position and has thus failed to establish the
second prong of a prima facie case.
Second, Plaintiff has not shown that the position remained open and Main Street
continued to seek applicants after Defendant was rejected. The undisputed facts demonstrate that
in both 2003 and 2004, the Main Street Manager position was filled by qualified applicants who
were members of the same applicant pool as Plaintiff. In addition, there were other applicants

37

Docket no. 154, Exhibit D, at 1.

38

Id.
13

who were also rejected for both positions (and one both times as well), and Plaintiff has failed to
provide any evidence to demonstrate that he was treated any differently than those applicants.
Thus, the court concludes that because Plaintiff has not satisfied the second and fourth prongs, he
has failed to demonstrate a prima facie case of disparate treatment.
(2) Defendants’ Legitimate, Non-Discriminatory Reasons
Even assuming arguendo that Plaintiff has set forth a prima facie case of discrimination,
Defendants have enumerated legitimate, non-discriminatory reasons for failing to hire him.
Specifically, Defendants assert that they did not hire him because they believed that Mr. Luca
and Ms. Johnson were more qualified for the position. Defendants also contend that, based on
Plaintiff’s past disputes with various individuals and institutions in the community, they believed
Plaintiff could not work closely or be collegial with City officials and employees, other
governmental entities, local business owners, and/or the public. And, “[i]t is the manager’s
perception of the [applicant’s] performance that is relevant, not [P]laintiff’s subjective evaluation
of his own relative performance.” Jones v. Denver Post Corp., 203 F.3d 748, 754 (10th Cir.
2000) (quotations and citations omitted); see also Lucero v. Sandia Corp., No. 11-2028, 2012
WL 3667449, at *5 (10th Cir. August 28, 2012) (unpublished). The court further notes that the
Tenth Circuit has previously held that an individual’s “ability to work well with others,
particularly with management, is a legitimate, non-discriminatory qualification” for employment.
Trujillo v. Huerfano County Bd. of County Com'rs, 349 Fed. Appx. 355, 364 (10th Cir. 2009);
see also Fye v. Okla. Corp. Com’n, 516 F.3d 1217, 1228 (10th Cir. 2008).

14

The court concludes that Defendants have offered a legitimate, non-discriminatory basis
for failing to hire Plaintiff. Accordingly, the burden shifts back to Plaintiff to demonstrate that
the proffered reasons were merely pretextual.
(3) Plaintiff’s Evidence of Pretext
Pretext may be shown by “such weaknesses, implausibilities, inconsistencies,
incoherences, or contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.” Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir.1997) (quotations and citation omitted). However, Plaintiff’s “‘mere
conjecture’” that the explanation for failing to hire him “‘is a pretext for intentional
discrimination is an insufficient basis for denial of summary judgment.’” Santana v. City &
County of Denver, 488 F.3d 860, 864-65 (10th Cir. 2007) (quoting Branson v. Price River Coal
Co., 853 F.2d 768, 772 (10th Cir. 1988)).
Plaintiff has failed to produce sufficient evidence to demonstrate a genuine issue of
material fact concerning whether the proffered explanations for failing to hire him are “unworthy
of belief.” Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). Plaintiff points to the
fact that both Mr. Luca and Ms. Johnson left the position after a year or less as evidence that
Defendants proffered explanations for failing to hire him are dubious. However, “[t]he relevant
inquiry is not whether the employer’s proffered reasons were wise, fair or correct, but whether it
honestly believed those reasons and acted in good faith upon those beliefs.” Rivera v. City &

15

County of Denver, 365 F.3d 912, 924-25 (10th Cir. 2004) (quotations, citation, and brackets
omitted). As aptly noted by the Tenth Circuit,
That individuals and companies sometimes make
employment decisions that prove to be bad ones in hindsight
usually suggests no more than that–that they got it wrong. To
support an inference of pretext, to suggest that something more
nefarious might be at play, a plaintiff must produce evidence that
the employer did more than get it wrong. He or she must come
forward with evidence that the employer didn’t really believe its
proffered reasons for action and thus may have been pursuing a
hidden discriminatory agenda.
Toward this end, to suggest that an employer’s claim that it
hired someone else because of superior qualifications is pretext for
discrimination rather than an honestly (even if mistakenly) held
belief, a plaintiff must come forward with facts showing an
“overwhelming” “disparity in qualifications.”
Johnson v. Weld County, Colo., 594 F.3d 1202, 1211 (10th Cir. 2010) (quoting Jaramillo, 427
F.3d at 1309 (other quotations and citations omitted)).
Plaintiff also argues that Defendants have not set forth with specificity the instances
where Plaintiff was difficult to work with and, as such, this proffered reason is merely a pretext
for discrimination. However, by Plaintiff’s own pleadings, he repeatedly demonstrates his
contentious attitude toward members of the community. As an example, in his original
complaint, he accuses several members of the hiring committee of failing to pay their taxes and
notes that he “had to expose” their wrongdoing.39 He also questions their fitness to serve as
board members of various local institutions. In addition, one of Plaintiff’s attachments to his

39

Docket no. 3 at 4-5.
16

original complaint contains three applications for membership in various local institutions all
dated October 2002. In those applications, he repeatedly insults various people and institutions
in the community, including those institutions for which he is applying, suggesting that they are
all racist, biased, corrupt, inefficient, and in one instance, “in need of [a] psychiatric
evaluation.”40 Thus, Plaintiff has failed to demonstrate that Defendants’ refusal to hire him based
on his inability to work well with members of the community was a pretext for discrimination.
In addition, Plaintiff also asserts that Defendants’ explanations were pretextual because
one of the members of the Main Street board who served on the hiring committee also owned a
motel in the City and competed for business with Plaintiff. Plaintiff contends that this board
member must have been racist and biased against him because she disapproved of Plaintiff
displaying the nightly room rates for his motel. Plaintiff also contends that this board member
was offended by Plaintiff’s telling her that she was keeping Main Street as a “local white
women’s club” and that she obviously believed that a “21st century Nigger got no right to put
nail in head of local white.”41 Plaintiff states that because everyone in Panguitch knows that he
has brown skin, he is Hindu, he is an immigrant, and he is male, the hiring committee must have
taken those characteristics into account when they rejected him for the position. Plaintiff,
however, “has no evidence to show pretext, other than [his] own subjective belief, which is not
sufficient to withstand a motion for summary judgment.” Pumphrey v. Lifescan Inc., No.

40

Id., Exhibit B-1.

41

Docket no. 156 at 5.
17

2:05CV851DAK, 2010 WL 417414, at *11 (D. Utah Jan. 29, 2010), see also Schultz v. Gen.
Elec. Capital Corp., 37 F.3d 329, 334 (7th Cir. 1994) (noting that “self-serving remarks standing
alone are insufficient to raise doubt as to the credence of [the employer's] explanation”).
Based on the foregoing, this court concludes that Plaintiff has failed to (1) demonstrate a
prima facie case of failure to hire and (2) show that genuine issues of material fact exist as to
whether Defendants’ legitimate non-discriminatory reasons for failing to hire him were merely a
pretext for discrimination. Accordingly, Defendants’ motion for summary judgment is
GRANTED on the following causes of action alleged by Plaintiff: “discrimination[;] . . .
violation of Plaintiff’s constitutional rights[;] . . . violation of federal’s [sic] affirmative action
law[;] . . . racism[;] . . . Defendants are engaged in harassment (targeting, infringement upon
rights, egoism, arrogance, obstruction of justice, intimidation, pusedo [sic] authority, etc.)[;] . . .
[and] (11) “bullying.”42
D. Plaintiff’s Remaining Causes of Action
In the remaining six purported causes of action, Plaintiff has set forth claims all relating
to his belief that Defendants, as well as the entire community, are conspiring against him.
Defendants urge the court to dismiss the remaining causes of action for failure to state a claim
under rule 12(b)(6) of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(b)(6). “To
survive a motion to dismiss under rule 12(b)(6), “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,

42

Docket no. 119 at 6-12.
18

556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)).
However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions,” and, as such, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at
678. Thus, “only a complaint that states a plausible claim for relief survives a motion to
dismiss.” Id. at 679.
Only the following three claims remotely state a recognized cause of action: “Defendants
are engaged in slandering,” “Defendants are engaged in malice,” and “Defendants are engaged in
perjury.”43 The court will address the slander and malice claims together and the perjury claim
separately.
(1) Slander and Malice
Plaintiff argues that Defendants engaged in slander by stating in their written response to
his discovery requests that because Plaintiff “was well known for his disputes with various
institutions and individuals in the community, [he] . . . would not be able to successfully manage
the organization.”44 Under Utah law, slander is defined as “any libel communicated by spoken
words.” Utah Code Ann. § 45-2-2(2). And libel is defined as “a malicious defamation,
expressed either by printing or by signs or pictures or the like, . . . to impeach the honesty,
integrity, virtue or reputation, or publish the natural defects of [an individual], and thereby to

43

Id.

44

Id. at 6.
19

expose him to public hatred, contempt or ridicule.” Utah Code Ann. § 45-2-2(1). Because
Plaintiff contends that Defendants’ written discovery response constitutes slander, and “[s]lander
and libel are a subset of defamation,” Jensen v. Sawyers, 130 P.3d 325, 333 n.6 (Utah 2005), the
court will construe his slander claim, as well as his claim for malice,45 as one cause of action for
defamation.
“To state a claim for defamation, [Plaintiff] must show that [D]efendants published the
statements concerning him, that the statements were false, defamatory, and not subject to any
privilege, that the statements were published with the requisite degree of fault, and that their
publication resulted in damage.” West v. Thomson Newspapers, 872 P.2d 999, 1007-1008 (Utah
1994). Plaintiff has failed to state a claim for defamation because he has not shown that the
statements were not subject to a privilege. “To establish the judicial proceeding privilege, the
statements must be (1) made during or in the course of a judicial proceeding; (2) have some
reference to the subject matter of the proceeding; and (3) be made by someone acting in the
capacity of judge, juror, witness, litigant, or counsel.” Krouse v. Bower, 20 P.3d 895, 898 (Utah
2001) (quotations and citations omitted); see also Pratt v. Nelson, 164 P.3d 366, 376 (Utah
2007). Because Defendants’ statements were made during the course of a judicial proceeding in

45

Under his malice claim, Plaintiff does not set forth any specific actions taken by
Defendants. Instead, he cites to, and quotes from, two cases involving defamation claims but he
fails to demonstrate how these cases apply to the facts of his case. In addition, the court notes
that there is not a separate, recognized cause of action for malice–it is generally an element of
some other cause of a action, like defamation or libel. However, for purposes of this analysis, the
court construes both causes of action as one for defamation.
20

response to Plaintiff’s discovery requests, Defendants have absolute immunity from a claim of
libel and Plaintiff’s claims fail as a matter of law.
(2) Perjury
Plaintiff appears to assert that because Main Street argued during the administrative
proceedings that it was not an alter ego of the City nor an employer under applicable Utah law,
Defendants engaged in perjury. While criminal liability exists for perjury, Utah does not
recognize civil perjury as a private right of action. See Cline v. State, Div. of Child & Family
Servs., 142 P.3d 127, 136-37 (Utah Ct. App. 2005) (“When a statute makes certain acts unlawful
and provides criminal penalties for such acts, but does not specifically provide for a private right
of action, we generally will not create such a private right of action.”). Thus, Plaintiff’s cause of
action for perjury also fails to state a claim for relief as a matter of law.
(3) Claims for Systematic Approach, Inefficiency, and One of Them Requirement
The remaining three causes of action are enumerated as (A) “systematic approach
(indirect but clear thru long term performance approach) to push certain kind of people
(educated, people who exercise rights, ask questions, diversity with diverse background, etc.) out
of community based on personal disliking, gains, etc.”; (B) “inefficiency leading personal gains
at citizens’ cost”; and (C) “requirement is ‘one of them.’” 46 These claims do not set forth any
specific and cognizable cause of action for which relief is available. Accordingly, Plaintiff’s

46

Docket no. 119 at 6-12.
21

remaining claims each fail to “state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570.
III. CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Defendants’ motion for
summary judgment47 is GRANTED and all of Plaintiff’s claims are DISMISSED with
prejudice. The final pretrial conference scheduled for November 14, 2012, and the three-day
bench trial scheduled to begin on November 27, 2012, are hereby STRICKEN. And all
remaining pending motions48 are rendered MOOT. Because this ruling disposes of all of
Plaintiff’s claims, the Clerk of Court is directed to close this case.
IT IS SO ORDERED.
DATED this 8th day of November, 2012.
BY THE COURT:

DALE A. KIMBALL
United States District Judge

47

See docket no. 153.

48

See docket nos. 139, 140, 157, 167, 169, 177, 181, and 187.
22