Opinion
Civil Action 22-cv-03191-NYW-NRN
06-28-2024
PATRICK ANINIBA, Plaintiff, v. AURORA PUBLIC SCHOOLS, Defendant.
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT (ECF No. 52)
N. REID NEUREITER, UNITED STATES MAGISTRATE JUDGE
This employment discrimination case is before the Court pursuant to an Order, ECF No. 53, issued by Judge Nina Y. Wang referring Defendant Aurora Public Schools' (“APS”) Motion to Dismiss Plaintiff's Second Amended Complaint (“Motion to Dismiss”), ECF No. 52, filed on February 1, 2024. Plaintiff Patrick Aniniba, who proceeds pro se, did not file a response within the time contemplated by the Federal and Local Rules of Civil Procedure. However, he did file several letters, ECF Nos. 60, 62, and 65, which were docketed as motions and referred to the undersigned. These letters do not respond to the arguments raised in the Motion to Dismiss, and the Court will address them via a separate order.
Because Plaintiff proceeds pro se, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). A plaintiff's pro se status does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).
Plaintiff was given the opportunity to be heard in a Motion Hearing scheduled for April 16, 2024. Plaintiff neither attended, nor notified the Court of his inability to attend, despite being the party who requested the Motion Hearing. ECF No. 59.
On February 8, 2024, Plaintiff filed a letter with the Court requesting a hearing on Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint. ECF No. 55.
The Courtroom Minutes for the April 16, 2024 hearing document the Court's repeated efforts to contact Plaintiff by email and telephone unsuccessfully. See ECF No. 59 at 1. Plaintiff did not respond to the Court's attempts to contact him and did not file anything with the Court until April 26, 2024-ten days after the scheduled hearing was to take place.
The Court has taken judicial notice of the docket and considered the applicable Federal Rules of Civil Procedure and case law. Now, being fully informed and for the reasons discussed below, the Court makes the following recommendations. As set forth below, the Court RECOMMENDS that the Motion to Dismiss, ECF No. 52, be GRANTED.
I. BACKGROUND
a. Procedural History
Plaintiff, through counsel, commenced this action against APS on December 9, 2022. ECF No. 1. On March 1, 2023, APS filed its first motion to dismiss. ECF No. 14. Rather than respond to the motion to dismiss, on March 24, 203, Plaintiff moved for leave to amend, ECF No. 23, which the Court granted on March 28, 2023, ECF No. 25.
On April 4, 2023, APS moved to dismiss the First Amendment Complaint. ECF No. 29. The parties fully briefed the motion. ECF Nos. 30, 31. On October 18, 2023, Judge Wang issued a Memorandum Opinion and Order granting the motion to dismiss without prejudice. ECF No. 33. However, Judge Wang permitted Plaintiff to seek leave to further amend to cure the deficiencies she outlined in the Order.
Plaintiff's counsel then moved to withdraw, ECF No. 35, which the Court granted after holding a hearing, see ECF No. 40. Plaintiff, who was now appearing pro se, was given several extensions of time to file an amended pleading. See ECF Nos. 40, 45, and 50. He finally filed a Second Amended Complaint (“SAC”), the operative pleading, on January 16, 2024. ECF No. 51. The SAC does not comply with D.C.COLO.LCivR 15.1. Instead, it includes the entirety of his First Amended Complaint and Jury Demand and states the same two discrimination and retaliation claims, although it adds some additional arguments and allegations.
APS now moves to dismiss. ECF No. 52.
The following allegations are taken from the SAC (ECF No. 51), and all non-conclusory allegations are presumed true for the purposes of the motions to dismiss. All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.
Judge Wang succinctly set forth the relevant background of this case in her October 18, 2023 Order and, given that the SAC largely repeats the allegations contained in Plaintiff's earlier pleading, it will not be repeated except as necessary.
Briefly, Plaintiff, who is of Nigerian origin, was employed by APS from July 2015 to April 2021. At the time of his April 13, 2021 termination, Plaintiff worked as a Cross Categorical Paraeducator at Hinkley High School. Plaintiff received three written reprimands in 2021 claiming that he (1) was seen sleeping in class, ECF No. 52-1; (2) made inappropriate comments to a teacher about her drinking vodka in school, ECF No. 52-2; and (3) recorded/photographed another paraprofessional without her permission, ECF No. 52-3. He was subsequently fired and escorted out of the building.
As Judge Wang did, the Court can take judicial notice of these letters when deciding the Motion to Dismiss because they are referenced in the SAC, central to Plaintiff's claims, and, although Plaintiff objects to their truthfulness, he does not challenge their authenticity.
Plaintiff claims that this discipline and termination were based on his Nigerian ancestry and done in retaliation for his protected activity-complaining about another paraprofessional's racist comments about a student (the paraprofessional allegedly referring to a student as an “animal” and/or “monkey”). The only additional SAC allegations of purported discrimination against Plaintiff are that he “was not aware nor invited to a social meeting and/or grading” of an intern, and that his desk was moved to a public area near a copy machine. See ECF. No. 51 at 21.
As noted above, Plaintiff asserts two claims for relief: First, national origin discrimination in violation of Title VII of the Civil Rights Act of 1965 (“Title VII”), and second, retaliation in violation of Title VII. ECF No. 51 at 4.
II. LEGAL STANDARD
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall, 935 F.2d at 1109. “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) (citing 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. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “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 679-81. Second, the court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Tex. Waste Mgmt., 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 Fed.Appx. 691, 693 (10th Cir. 2003).
III. ANALYSIS
a. Title VII National Origin Discrimination
Under Title VII, employers are prohibited from discriminating against individuals in the “terms” and “conditions” of employment because of the individual's membership in a protected class, including national origin status. 42 U.S.C. § 2000e-2(a) (“It shall be an unlawful employment practice for an employer . . . to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . . .”) (emphasis added).
Where, as is the case here, the plaintiff offers no direct evidence of discrimination, the three-step burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. In that framework, a plaintiff alleging a Title VII discrimination claim must first establish a prima facie case of discrimination. Id. at 802. “[T]he articulation of a plaintiff's prima facie case may well vary, depending on the context of the claim and the nature of the adverse employment action alleged.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005) (citations omitted). In this context, a prima facie case of discrimination must consist of plausible allegations that (1) Plaintiff belongs to a protected class; (2) Plaintiff suffered an adverse employment action; and (3) the challenged action took place under circumstances giving rise to an inference of discrimination. E.E.O.C. v. PVNF, L.L.C., 487 F.3d 790, 800 (10th Cir. 2007).
If the plaintiff establishes a prima facie discrimination claim, the burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason for the [challenged adverse employment action].” 411 U.S. at 802. If the employer meets that burden, the employee must then show that the employer's stated reasons are pretext for unlawful discrimination. Id. at 804.
APS challenges the third element of Plaintiff's prima facie discrimination claim and argues that Plaintiff fails to allege any fact that gives rise to an inference that his termination was discriminatory. APS contends that Plaintiff does not connect his Nigerian ancestry to his allegations of purported discrimination; namely, that his coworkers took pictures of him without his permission, that he was reassigned so his performance could be monitored, that he was falsely accused of sleeping on the job, that he was led out of the building after he was fired, that he was reprimanded without investigation, and that he was treated differently than other employees.
An inference of discrimination may be demonstrated through evidence that the plaintiff was treated dissimilarly from other similarly situated individuals who are not members of the same Title VII protected class. See McAlester v. United Air Lines, Inc., 851 F.2d 1249, 1260 (10th Cir. 1988) (“A prima facie case of discriminatory termination is made by showing (i) that [Plaintiff] belongs to a racial minority; (ii) that he was discharged for violating a work rule [of APS]; and (iii) that similarly situated non-minority employees who violated the same rule were treated differently than he was.”) (citation omitted); Kendrick v. Penske Transp. Servs., Inc., No. CIV. A. 98-2289-KHV, 1999 WL 450886, at *6 (D. Kan. Apr. 13, 1999) (“[P]laintiff must show that [Defendant employer] treated him differently than other similarly situated employees who violated work rules of comparable seriousness.”) As Judge Wang stated, “[a]lthough the Tenth Circuit ‘do[es] not mandate the pleading of any specific facts in particular, a plaintiff must include enough context and detail to link the allegedly adverse . . . action to a discriminatory or retaliatory motive with something besides sheer speculation.'” ECF No. 33 at 5 (quoting Al Ghareeb v. Bd. of Trs. at Univ. of N. Colo., 849 Fed.Appx. 746, 749 (10th Cir. 2021)). Plaintiff's SAC does not remedy the deficiencies identified by Judge Wang because Plaintiff still has not identified any similarly situated individuals who are members of a protected class and who violated work rules of comparable seriousness but were treated differently. Although he does allege that other paraprofessionals were not disciplined for photographing him (while sleeping, according to APS) without his permission, Plaintiff states in the SAC that “all paraprofessionals were minorities.” ECF No. 51 at 20. Thus, he has not identified individuals not of a protected national origin who were treated differently. Moreover, he has not alleged that these other paraprofessionals were “similarly situated” to Plaintiff, i.e., had the same supervisor and were subject to the same standards governing performance evaluation and discipline. See Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th Cir. 2007) (defining “similarly situated employees” as “those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline”). For these reasons, the SAC fails to adequately allege that Plaintiff's termination took place under circumstances giving rise to the inference of discrimination.
Accordingly, Plaintiff's Title VII national origin discrimination claim fails for substantially the same reasons identified by Judge Wang in her October 18, 2023 Order and should be dismissed.
b. Title VII Retaliation
Title VII also prohibits employers from retaliating against employees for engaging in activities covered by the Act's “participation” and/or “opposition” clauses:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C § 2000e-3(a); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 269 (2001). The Tenth Circuit applies a three-factor test for establishing a prima facie case of retaliatory discharge, which requires a plaintiff to demonstrate (1) he engaged in protected opposition to discrimination; (2) he was subject to an adverse employment action; and (3) there is a causal nexus between the protected activity and the adverse employment action. Burrus v. United Tel. Co. of Kan., 683 F.2d 339, 343 (10th Cir. 1982) (citations omitted); Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1103 (10th Cir. 1998).
APS argues that Plaintiff's retaliation claim fails because he does not plausibly allege that he engaged in protected opposition to discrimination or plausibly allege causation. Following Judge Wang's lead, the Court will assume without deciding that Plaintiff has sufficiently alleges that he engaged in protected activity when, on October 4, 2020, he “objected to discriminatory remarks made about one of his students of color” by a paraprofessional employed by APS, who had referred the student as an “animal” and/or “monkey.”
However, the Court agrees with APS that Plaintiff does not allege a causal connection between this protected activity and his termination, which occurred on April 13, 2021. APS cites Tenth Circuit authority that a gap of three months or more between the alleged protected activity and the adverse action is insufficient to establish causation. See Bekkem v. Wilkie, 915 F.3d 1258, 1271 (10th Cir. 2019) (“[A] threemonth gap between protected activity and an adverse action is too long to support an inference of causation on its own.”). And Judge Wang found that Plaintiff's First Amended Complaint failed
to give rise to a reasonable inference of causation, sufficient to support the retaliation claim, because it does not allege with sufficient specificity any adverse action taken by Plaintiff's supervisors in the months immediately following his alleged protected activity, nor does it suggest a pattern of mistreatment culminating in adverse action that would otherwise render this a “close-proximity case.”
ECF No. 33 at 8. Judge Wang further observed that Plaintiff “points to no additional specific and non-conclusory allegations . . . that support causation.” ECF No. 33 at 8. As noted above, the SAC does not contain any additional allegations that compel the Court to revisit this well-reasoned conclusion. Indeed, the only facts Plaintiff added to the SAC that relate to this issue are that Plaintiff “was not aware nor invited to a social meeting and/or grading” of an intern, and that his desk was moved a public area. ECF No. 51 at 20. Significantly, the SAC does not say when either event occurred, so the Court cannot assess their temporal relevance. In any case, neither amounts to an adverse employment action. Rather, at most, these new allegations are more akin to “petty slights” and “personality conflicts,” which courts have consistently construed to not be actionable. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“An employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience.”); Somoza v. Univ. of Denver, 513 F.3d 1206, 1219 (10th Cir. 2008) (holding that incivility, rudeness, offensive statements were not actionable as circumstantial evidence of discriminatory animus in Title VII national origin suit).
Because Plaintiff did not cure the deficiencies clearly identified by Judge Wang when she dismissed his earlier complaint, Plaintiff's Title VII retaliation claim likewise should be dismissed.
IV. RECOMMENDATION
Accordingly, it is hereby RECOMMENDED that Defendant Aurora Public Schools' Motion to Dismiss Plaintiff's Second Amended Complaint, ECF No. 52, be GRANTED, and that Plaintiff's Second Amended Complaint, ECF No. 51, be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed.R.Civ.P. 72(b)(2), the parties have fourteen (14) days after service of this recommendation to serve and file specific written objections to the above recommendation with the District Judge assigned to the case. A party may respond to another party's objections within fourteen (14) days after being served with a copy. The District Judge need not consider frivolous, conclusive, or general objections. A party's failure to file and serve such written, specific objections waives de novo review of the recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).