Opinion
Civil Action No. 19-cv-01370-CMA-KLM
07-23-2020
EDILBERTO CANO-RODRIGUEZ, Plaintiff, v. ADAMS COUNTY SCHOOL DISTRICT NO. 14, a political and quasi municipal subdivision, JAVIER ABREGO in his individual capacity, and, ARACELIA BURGOS in her individual capacity, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Motion for Leave to File Third Amended Complaint [#73] (the "Motion"). Defendants filed a Response [#77] in opposition to the Motion, and Plaintiff filed a Reply [#80]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), the Motion [#73] has been referred to the undersigned for a recommendation regarding disposition. The Court has reviewed the Motion, Response, Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court RECOMMENDS that the Motion [#73] be GRANTED.
[#73] is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
A magistrate judge may issue orders on nondispositive motions only. Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1461, 1462-63 (10th Cir. 1988). Whether motions to amend are dispositive is an unsettled issue in the 10th Circuit. Hatten v. Freeborn, No. 09-cv-02729-CMA-MJW, 2010 WL 1677772, at *2 (D. Colo. Apr. 26, 2010) (citing Chavez v. Hatterman, No. 06-cv-02525-WYD-MEH, 2009 WL 82496, at *1 (D. Colo. Jan. 13, 2009)). When an order on a motion to amend removes or precludes a defense or claim from the case it may be dispositive. Sunflower Condo. Ass'n, Inc. v. Owners Ins. Co., No. 16-cv-2946-WJM-NYW, 2018 WL 1755784, at *1 (D. Colo. Apr. 12, 2018) (quoting Cuenca v. Univ. of Kan., 205 F. Supp. 2d 1226, 1228 (D. Kan. 2002)). Accordingly, because Plaintiff's proposed amendment removes claims from the case, the Court assumes in an abundance of caution that the Motion [#73] is dispositive and requires a Recommendation.
I. Background
On May 13, 2019, Plaintiff filed this lawsuit, see Compl. alleging that Defendants discriminated against him on the basis of his race, national origin, and association with Hispanic individuals. Second Am. Compl. [#34] ¶ 1. Plaintiff alleges that he was terminated from his position as the Director of Teaching and Learning for English Language Development ("ELD") for the Adams County School District No. 14 (the "District") after complaining about this discrimination. Id. Specifically, Plaintiff alleges that Defendants terminated him because he filed a complaint with the United States Department of Education, Office of Civil Rights (the "OCR"), and raised the issue "with a community of professionals in bilingual education with whom he was associated." Id.
On April 22, 2020, the undersigned entered a Recommendation [#70] on Defendants' Motion to Dismiss the Second Amended Complaint [#41], recommending that the motion be granted in part and denied in part. In short, the undersigned recommended that (1) Plaintiff's associational discrimination claim under Title VII be dismissed with prejudice, (2) Plaintiff's Title VI claim be dismissed without prejudice, (3) Plaintiff's First Amendment claims regarding his speech about Defendants abandoning bilingual education to the Bueno Center and Dr. Escamilla be dismissed with prejudice, (4) Plaintiff's municipal liability claims against the District be dismissed without prejudice, and (5) the Motion to Dismiss [#41] be denied in all other respects. Recommendation [#70] at 31. The Recommendation is pending with the District Judge.
On May 6, 2020, Plaintiff filed the instant Motion [#73]. Plaintiff seeks to amend his Second Amended Complaint [#34] to remove (1) the discrimination portion (not the retaliation portion) of his second claim under Title VII, asserted against the District, (2) the entirety of his third claim under the equal protection clause of the Fourteenth Amendment, asserted against all Defendants, and (3) the entirety of his fourth claim regarding retaliation under Title VI, asserted against the District. Proposed Third Am. Compl. [#73-1] at 24-28; see also Motion [#73] at 3-4. Plaintiff also seeks to add substantial additional information intended to bolster his claim regarding municipal liability. See generally Proposed Third Am. Compl. [#73-1]. Specifically, Plaintiff seeks to amend his Second Amended Complaint [#34] to include additional information obtained during written discovery and depositions of Defendants Javier Abrego ("Abrego") and Aracelia Burgos ("Burgos"). Motion [#73] at 3. Plaintiff seeks to include information related to similar alleged acts of misconduct against other employees about which the Board of Education (the "Board") was the final policymaker. Id. In addition, Plaintiff seeks to add information that the Board delegated authority to Defendants Abrego and Burgos to restructure and then ratified the plan to terminate Plaintiff. Id.
Defendants do not explicitly consent to or contest the removal of the claims requested by Plaintiff. See generally Response [#77]. In fact, the substance of Defendants' Response [#77] appears to solely contest the proposed amendments as they apply to the municipal liability claim against the District. Thus, the analysis below pertains only to the contested amendments, unless otherwise stated.
II. Analysis
As a preliminary matter, the deadline for the amendment of pleadings was October 11, 2019. Minutes [#35] at 2. Plaintiff filed the present Motion [#73] on May 6, 2020, and therefore the Motion is untimely. "After a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard." Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1247 (10th Cir. 2015) (quoting Gorsuch, Ltd., B.C. v. Wells Fargo Nat'l Bank Ass'n, 771 F.3d 1230, 1240 (10th Cir. 2014)); see, e.g., Petekeiwicz v. Stembel, No. 13-cv-01865-RM-KLM, 2015 WL 1740386, at *4 (D. Colo. Apr. 14, 2015); Nicastle v. Adams Cty. Sheriff's Office, No. 10-cv-00816-REB-KMT, 2011 WL 1465586, at *3 (D. Colo. Mar. 14, 2011), adopted by, No. 10-cv-00816-REB-KMT, 2011 WL 1464588 (D. Colo. Apr. 18, 2011); Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 688 (D. Colo. 2000). Thus, if the movant meets the Rule 16(b)(4) good cause standard and the Rule 15(a) standard to amend the pleadings, the movant has met the requirements to amend the pleadings. Birch, 812 F.3d at 1247.
A. Fed. R. Civ. P. 16(b)(4)
Defendants first assert that Plaintiff has failed to show good cause to amend the Second Amended Complaint [#34] as required by Fed. R. Civ. P 16(b)(4). Response [#77] at 4-5. Defendants argue that Plaintiff already knew the additional facts regarding the District's alleged discrimination and retaliation against four former employees, as provided in the proposed Third Amended Complaint [#73-1], prior to the depositions and written discovery obtained from Defendants Abrego and Burgos. Id.
Regarding the depositions, Defendants point out that employees Ari Gerzon ("Gerzon") and Walter Kramarz ("Kramarz") were not mentioned at all during them, that employee Cynthia Trinidad-Sheehan ("Trinidad-Sheehan") was "mentioned only in passing," and that Plaintiff already knew about the alleged discrimination and retaliation against employee Sandra Rotella ("Rotella") because he questioned Defendant Abrego about it at the deposition. Id. at 4.
Regarding the written discovery, Defendants assert that no complaints of discrimination or retaliation were produced regarding employees Ms. Trinidad-Sheehan or Mr. Kramarz, although documents were produced in discovery regarding complaints of discrimination by employees Mr. Gerzon and Ms. Rotella. Id. Finally, Defendants assert that nothing in discovery suggests the Board's delegation of responsibility to Defendants Abrego or Burgos. Id. at 5. Rather, Defendants state that Plaintiff is attempting to assert new theories of municipal liability. Id.
To meet the Rule 16(b)(4) standard, the moving party must "show that [he was] diligent in attempting to meet the [pleading amendment] deadline"; this standard can be met by the provision of "an adequate explanation for any delay." Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). If a plaintiff learns new information through discovery, good cause to amend may be established under Rule 16(b)(4). Birch, 812 F.3d at 1247. "The fact that a party first learns, through discovery or disclosures, information necessary for the assertion of a claim after the deadline to amend established in the scheduling order has expired constitutes good cause to extend that deadline." Pumpco, Inc. v. Schenker Intern., Inc., 204 F.R.D. 667, 668-69 (D. Colo. 2001). Conversely, if the plaintiff knew of the conduct substantiating the claims he seeks leave to add, but simply failed to raise the claims, the plaintiff has failed to show good cause, and the claims are barred. Birch, 812 F.3d at 1247. Denial is appropriate when the moving party does not demonstrate good cause for his failure to file the motion prior to the scheduling order deadline. Minter, 451 F.3d at 1205.
By way of example, in Riggs v. Johnson, No. 09-cv-01226-WYD-KLM, 2010 WL 1957110, at *1 (D. Colo. Apr. 27, 2010), the Court considered the plaintiff's motion for leave to file an amended complaint to join an additional party long after the Scheduling Order deadline for amendment had passed. The plaintiffs had filed the motion on March 4, 2010, almost six months after the deadline. Riggs, 2010 WL 1957110, at *2. The plaintiffs alleged that they only became aware of the "extent of the relationship" between the defendants and the new party after a deposition of one of the defendants on January 27, 2010. Id. "The fact that a party first learns through discovery of information which may lead to amendment of deadlines . . . constitutes good cause for such amendment." Id. at *3 (citing Pumpco, 204 F.R.D. at 668-69). The Court found that the new information obtained during the deposition established good cause to amend the complaint to add the new party. Id.
Turning to the Court's analysis, for the following reasons, the Court finds that good cause exists to amend the Second Amended Complaint [#34]. On September 23, 2020, prior to the amendment deadline, Plaintiff served his First Set of Written Discovery on Defendants. Reply [#80] at 2. On January 17, 2020, after the pleading amendment deadline had passed, Defendants produced their discovery responses which included 4,131 pages of documents related to charges of discrimination, Governmental Immunity Act notices, and the personnel files for Mr. Gerzon, Ms. Rotella, and Ms. Trinidad-Sheehan. Id. at 3. Further, Plaintiff avers that he received affidavits on April 6 and April 10, 2020, detailing the allegations regarding Ms. Trinidad-Sheehan and Mr. Kramarz. Id. at 4. In the instant Motion [#73], Plaintiff seeks to amend his Second Amended Complaint [#34] to provide this information which purportedly includes allegations of retaliatory acts directed toward Mr. Gerzon, Ms. Rotella, Mr. Kramarz, and Ms. Trinidad-Sheehan. Third Am. Compl. [#73-1] ¶¶ 21-24, 26.
In addition, Plaintiff deposed Defendant Abrego on February 14, 2020, after the deadline for amendment of pleadings. Reply [#80] at 4. Plaintiff asserts that during Defendant Abrego's deposition on February 14, 2020, Abrego provided information related to the restructuring process. Id. at 4-5. Plaintiff alleges in the proposed Third Amended Complaint [#73-1] that the Board delegated to Defendants Abrego and Burgos the responsibility to develop a restructuring plan which ultimately terminated Plaintiff's position. Third Am. Compl. [#73-1] ¶ 78. The Board then ratified this restructuring plan. Id. Plaintiff asserts that the information obtained during Defendant Abrego's deposition is material to a determination of the District's liability related to "the ratification by such final policymakers of the decisions—and the basis for them—of subordinates to whom authority was delegated subject to these policymakers' review and approval." Brammer-Hoelter v. Twin Peaks Charter Acad., 602 F.3d 1175, 1189 (10th Cir. 2010).
The Court finds that Plaintiff has provided an adequate explanation for delay in seeking amendment of his Second Amended Complaint [#34] based on the information obtained after the deadline for amendment passed. The Court will not "nit-pick" through each allegation and attempt to determine precisely which allegations were known before or after that deadline. It is enough that it is clear from the briefs that a large portion of the additional information was discovered or fleshed out based on discovery obtained after the deadline passed. There is no reason to believe that this failure to amend before the deadline passed is attributable to a lack of diligence on the part of Plaintiff.
Accordingly, the Court finds that Plaintiff has established good cause to extend the scheduling deadline under Rule 16(b)(4). Pumpco, 204 F.R.D. at 668-89; Riggs, 2010 WL 1957110, at *1.
B. Fed. R. Civ. P. 15(a)(2)
The Court next considers any arguments raised by the parties related to whether justice would be served by amendment. Fed. R. Civ. P 15(a)(2). "If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). Leave to amend need not be given, however, when the moving party unduly delayed, the nonmoving party would be unduly prejudiced, or amendment would be futile. Id. Here, Defendants argue that the proposed amendment causes undue delay, undue prejudice, and that the amendment would be futile. Response [#77] at 6.
1. Undue Delay
Plaintiff argues that he has not unduly delayed in amending his Second Amended Complaint [#34]. Motion [#73] at 4. Plaintiff asserts that he served the First Set of Written Discovery on September 23, 2019, prior to the deadline for amendment of pleadings. Reply [#80] at 2. However, Defendants did not serve their responses until January 17, 2020. Id. at 3. Further, Plaintiff asserts that he was unable to schedule depositions until he received the responsive documents from written discovery. Id. at 4 n.5. After obtaining the responsive discovery, Plaintiff deposed Defendant Abrego on February 14, 2020, and Defendant Burgos on February 20, 2020. Id. at 3 n.3. Finally, Plaintiff avers that he obtained affidavits from Ms. Trinidad-Sheehan and Patrick Sanchez ("Sanchez") on April 6, 2020, and April 10, 2020, respectively. Id. at 4. In response, Defendants argue that Plaintiff "offers no reason for delay except that he learned new information during discovery." Response [#77] at 7. In addition, Defendants argue that the parties are nearing the July 28, 2020 discovery deadline. Id.
In considering delay, the important inquiry is not simply whether Plaintiff has delayed, but whether such delay is undue. Minter, 451 F.3d at 1206. Untimeliness is a sufficient reason to deny leave to amend. See Woolsey v. Marion Lab., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991); Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990). However, the Tenth Circuit "focuses primarily on the reason for the delay" and whether the moving party has provided an adequate explanation for the delay. Minter, 451 F.3d at 1206. The longer the delay, the more likely the motion will be denied as protracted delay. Id. at 1205. A motion to amend is untimely if, among other reasons, the moving party has made the complaint a "moving target," is trying to "salvage a lost case by untimely suggesting new theories of recovery," is trying to present more theories to avoid dismissal, or is knowingly waiting until the eve of trial to assert new claims. Id. at 1206. Additionally, courts have denied untimely requests for leave to amend where the party was aware of the facts on which the amendment was based for some time prior to filing of the motion to amend. See, e.g., Fed. Ins. Co. v. Gates Learjet Corp., 823 F.2d 383, 387 (10th Cir. 1987).
For the following reasons, the Court finds that Defendants have failed to show that Plaintiff has unduly delayed. As discussed above, Plaintiff's First Set of Written Discovery and Defendant Abrego's deposition were not completed until after the October 11, 2019 deadline for amendment of pleadings. Reply [#80] at 3-4. Specifically, Defendants produced their discovery responses on January 17, 2020, and the deposition of Defendant Abrego was on February 14, 2020. Id. at 3-4. Further, Plaintiff asserts that information regarding Mr. Kramarz was obtained on April 10, 2020, when Mr. Sanchez provided an affidavit. Id. This information was obtained less than a month before filing the instant Motion [#73]. The Court notes that while the Motion [#73] was filed after the pleading amendment deadline expired, it nevertheless was filed before the expiration of the discovery deadline. Further, it does not appear that Plaintiff is attempting to add "new theories of recovery." Minter, 451 F.3d at 1206. Rather, Plaintiff is amending his Second Amended Complaint [#34] to add additional detail regarding similar instances of alleged retaliation and to clarify the identity of the final decision-maker.
Accordingly, the Court finds that Plaintiff has provided an adequate explanation for his delay and that any delay under the present circumstances does not rise to the level of "undue."
2. Undue Prejudice
Plaintiff argues that Defendants cannot show undue prejudice. Motion [#73] at 5. Undue prejudice has been construed to mean "undue difficulty in prosecuting [or defending] a lawsuit as a result of a change of tactics or theories on the part of the other party." Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., No. 09-cv-02757-WYD-KMT, 2010 WL 1905003, at *2 (D. Colo. May 12, 2010) (quoting Deakyne v. Comm'rs of Lewes, 416 F.2d 290, 300 (3d Cir. 1994)). Plaintiff asserts that the amendment regarding municipal liability is simply amending an existing claim and does not impose undue prejudice on Defendants. Reply [#80] at 7. Plaintiff states that the amended delegation and ratification theory overlap with Plaintiff's allegations of delegation in the Second Amended Complaint. Id. (citing Second Am. Compl. [#34] ¶¶ 87-89, 125-26)). Further, Plaintiff states that the dismissal of certain claims narrows the scope of the litigation to the benefit of Defendants. Motion [#73] at 5. In response, Defendants argue that the amendment seeks to revive the municipal liability claim by filing an amended complaint under two new theories. Response [#77] at 7. To allow the amendment would require Defendants to perform additional factual and legal investigations, "likely additional depositions," and to file another response to an amended complaint, therefore resulting in undue prejudice. Id. at 7-8.
Prejudice to the opposing party is the single most important factor in deciding whether to allow leave to amend. Minter, 451 F.3d at 1207. "[U]ndue prejudice means undue difficulty in prosecuting or defending a lawsuit as a result of a change of tactics or theories on the part of the plaintiff." Midcities Metro. Dist. No. 1 v. U.S. Bank Nat'l Ass'n, 44 F. Supp. 3d 1062, 1067 (D. Colo. 2014) (citing Minter, 451 F.3d at 1208). Courts also consider discovery deadlines to determine if the amendment will unduly prejudice the nonmoving party. Gerald v. New Elk Coal Co., LLC, No. 13-cv-00277-RM-KMT, 2013 WL 5485581, at *1 (D. Colo. Oct. 1, 2013); see, e.g., Kellar v. U.S. Dep't. of Veteran Affairs, No. 08-cv-00761-WYD-KLM, 2008 WL 5330644, at *2 (D. Colo. Dec. 19, 2008).
For the following reasons, the Court finds that the proposed amendment is not unduly prejudicial to Defendants. Although Plaintiff alleges new information in support of his municipal liability claim, the amendment does not substantially alter the theory on which the claim rests. The Court agrees that the amendment simply beefs up an existing claim. Further, Defendants do not adequately demonstrate any undue prejudice they will experience if Plaintiff is permitted to amend. Defendants assert that they may need to conduct additional discovery, file a response, and do additional factual and legal investigation. Response [#77] at 7-8. However, it is unclear what, if any, additional discovery would be needed. Even if additional discovery is needed, Defendants do not demonstrate that the prejudice they may experience is incurable. W. Capital Partners LLC v. First Am. Title Ins. Co., No. 14-cv-00454-WJM-KLM, 2014 WL 7251631 (D. Colo. Dec. 19, 2014). A trial date has not been set and the final pretrial conference is not set until November 20, 2020. Minutes [#35] at 2. Thus, Defendants have notice of the claim and adequate time to defend the lawsuit and may seek an extension of the discovery deadline if necessary. Gerald, 2013 WL 5485581, at *1 (citing Baker, 2012 WL 1658982, at *2).
Accordingly, the Court finds that Defendants have failed to show that prejudice they will incur, if any, is "undue."
3. Futility
Plaintiff argues that the additional facts are material to a determination of the District's liability. The additional facts address when the alleged illegal activities occurred, their circumstances, and the identities of the decision-makers for the District. Id. Plaintiff asserts that the additional facts in the proposed Third Amended Complaint [#73-1] are necessary to plead "a pattern of multiple similar instances of misconduct" to establish an informal policy or custom of misconduct. Griego v. City of Albuquerque, 100 F. Supp. 3d 1192, 1213 (D.N.M. 2015).
Defendants argue that the Motion [#73] should be denied because Plaintiff's municipal liability claim is futile. Response [#77] at 8. An amendment is futile only if it would not survive a motion to dismiss. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cty. Sch. Dist. v. Moody's Inv'rs Servs., 175 F.3d 848, 859 (10th Cir. 1999)). "In ascertaining whether plaintiff's proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff, and the allegations in the complaint must be accepted as true." See Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, "[a]ny ambiguities must be resolved in favor of plaintiff, giving him 'the benefit of every reasonable inference' drawn from the 'well-pleaded' facts and allegations in his complaint." Id.
A motion to dismiss "tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim which "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Specific facts are not necessary; the statement need only give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (quoting Twombly, 550 U.S. at 555).
To begin, courts must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff. Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002). However, conclusory allegations are not entitled to this assumption of truth. Iqbal, 556 U.S. at 681. To deny a motion to dismiss, "[t]he complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Twombly, 550 U.S. at 570).
Under 42 U.S.C. § 1983, every person who, under the color of law, "causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and law" shall be liable. Section 1981 "forbids all intentional racial discrimination in the making or enforcement of private or public contracts." Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004). Section 1981 claims against municipalities must be brought under § 1983. Bolden v. City of Topeka, Kan., 441 F.3d 1129, 1134-37 (10th Cir. 2006). Municipalities are considered persons for the purpose of § 1983 and can incur § 1983 liability. Lankford v. City of Hobart, 73 F.3d 283, 286 (10th Cir. 1996). Similarly, school districts, as quasi-municipal agencies, can be sued "for depriving someone of constitutional or civil rights." Seamons v. Snow, 206 F.3d 1021, 1029 (10th Cir. 2000). In order for a municipality to be held liable under § 1983 there must be an underlying constitutional violation. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Furthermore, in order for a school district, or any municipal institution, to be held responsible for the unconstitutional act of an employee, the plaintiff must make certain showings. Monell v. Dep't of Soc. Servs. of N.Y.C., 436 U.S. 658, 691 (1978) ("[A] municipality cannot be held liable under § 1983 on respondeat superior theory."). First, the plaintiff must show that the employee's actions "were representative of an official policy or custom of the municipal institution, or were carried out by an official with final policy making authority with respect to the challenged action." Seamons, 206 F.3d at 1029. Second, the plaintiff must show that "there is a direct causal link between the policy or custom and the injury alleged." Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993). Here, Defendants do not challenge the second prong. See Response [#77]. Accordingly, the Court's analysis centers around the first prong.
Plaintiff asserts "the existence of a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well-settled as to constitute a custom or usage with the force of law." Motion [#73] at 2 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). In the proposed Third Amended Complaint [#73-1], Plaintiff alleges specific similar discriminatory acts of misconduct involving Mr. Gerzon, Ms. Rotella, Mr. Kramarz, and Ms. Trinidad-Sheehan. Reply [#80] at 9. The allegations include specific complaints of discrimination made to the Board and OCR, the dates of the complaints, and specific descriptions of the hostile work environment these individuals were allegedly subjected to. Id. at 9-10. The members of the Board who allegedly perpetrated the similar acts of discrimination against the four employees, mentioned above, were also the same Board members who allegedly ratified the firing of Plaintiff. Id. at 10.
In response, Defendants argue that the allegations in the proposed Third Amended Complaint [#73-1] regarding Mr. Gerzon, Ms. Rotella, and Mr. Kramarz are "threadbare allegations" that are insufficient to establish a pattern and practice claim. Response [#77] at 9-10. Defendants aver that both Mr. Gerzon and Ms. Rotella's charges of discrimination with the U.S. Equal Employment Opportunity Commission or Colorado Civil Rights Division were dismissed. Id. at 10. Finally, Defendants argue that Ms. Trinidad-Sheehan's allegations, alone, are insufficient to establish a "pattern or practice claim." Id.
For the following reasons, the Court finds that the allegations in the proposed Third Amended Complaint [#73-1] are not futile. "A plaintiff suing a municipality must provide fair notice to the defendant." Arakji v. Hess, No. 15-cv-00681-CMA, 2015 WL 7755975, at *6 (D. Colo. Dec. 2, 2015) (quoting Taylor v. RED Dev., LLC, No. 11-2178-JWL, 2011 WL 3880881, at *3 (D. Kan. Aug. 31, 2011)). Providing notice to a defendant can come in the form of "past incidents of misconduct to others" or "involvement of multiple officials in the misconduct." Id. (quoting Taylor, 2011 WL 3880881, at *3). "Those types of details, or any other minimal elaboration a plaintiff can provide, help to 'satisfy the requirements of providing not only fair notice of the nature of the claim, but also grounds on which the claim rests,' Twombly, 550 U.S. at 555 n.3, and also to 'permit the court to infer more than the mere possibility of misconduct.'" Id. (quoting Iqbal, 556 U.S. at 679). Further, "no set number" of similar instances is required to plead an informal practice, though, "the more unique the misconduct is, and the more similar the incidents are to one another, the smaller the required number will be to render the alleged policy plausible." Griego, 100 F. Supp. 3d at 1213.
Plaintiff's currently-operative Second Amended Complaint merely alleges that the District discriminated against Mr. Sanchez on the basis of his race. Second Am. Compl. [#34] ¶ 19. In addition, Plaintiff pleads that the District retaliated against Mr. Sanchez, Mr. Kramarz, Marisol Enriquez ("Enriquez"), Robyn Mondragon ("Mondragon"), Mr. Gerzon, and Sherry Segura ("Segura") "because of their efforts to end discrimination." Id. This information was the extent of the detail provided to support an inference that an informal policy of retaliation exists.
Here, in Plaintiff's proposed Third Amended Complaint [#73-1], Plaintiff provides many additional details, including when the alleged illegal activities occurred, their circumstances, and the identities of the decision-makers for the District. Third Am. Compl. [#73-1] ¶¶ 21-24, 26. Specifically, the proposed Third Amended Complaint adds additional information for employees Mr. Gerzon, Ms. Rotella, Mr. Kramarz, and Ms. Trinidad-Sheehan, and removes Ms. Enriquez, Ms. Segura, and Ms. Mondragon. Id. Plaintiff alleges that the Board retaliated against employees who opposed discrimination or advocated for compliance with the OCR settlement agreement. Id. For each of the four employees, Plaintiff details the alleged circumstances leading up to the retaliation, the retaliation itself, and the Board's composition. Id.
First, Plaintiff alleges that after Mr. Gerzon learned that the Board treated Mr. Sanchez differently based on race, he read a letter at a Board meeting voicing support for Mr. Sanchez, which upset the Board. Id. ¶ 22. Plaintiff alleges that the Board began retaliating against Mr. Gerzon, which ultimately led to his constructive discharge. Id. Second, Plaintiff alleges that Ms. Rotella advocated for the full enforcement of the settlement agreement while in a meeting with Defendant Abrego and the OCR. Id. ¶ 23. Ms. Rotella's advocacy "enraged" Defendant Abrego, who allegedly informed the Board of her position. Id. The Board began retaliating against Ms. Rotella and she filed a complaint with the OCR. Id. Plaintiff alleges that the Board, in retaliation for the complaint to the OCR, allowed Ms. Rotella's contract to expire and "left her without work to do for the remaining approximately six months of her contract." Id. Third, Plaintiff alleges that Mr. Kramarz opposed the discrimination and retaliation against Mr. Sanchez in meetings with the Board, and was terminated in retaliation for his support. Id. ¶ 25. Finally, Plaintiff alleges that Ms. Trinidad-Sheehan, in conversations with Defendants, supported Plaintiff in his efforts to insist that the District comply with the settlement agreements. Id. ¶ 26. Ms. Trinidad-Sheehan and Plaintiff were placed on administrative leave the same day, and later terminated in the same restructuring. Id. Plaintiff alleges that the Board retaliated against him for complaining about discrimination to the OCR, which ultimately resulted in his termination. Id. ¶ 95. Further, David Rolla, Connie Quintana, Timio Archuleta, and Harvest Thomas, were all members of the Board during the alleged retaliation against Plaintiff, Mr. Gerzon, Ms. Rotella, and Ms. Trinidad-Sheehan. Id. ¶ 22, 24, 26, 78.
Taking the allegations in a light most favorable to Plaintiff, the "past incidents of misconduct to others" and "the involvement of multiple officials in the misconduct" "satisfy the requirement of providing fair notice of the nature of the claims" and "the 'grounds' on which the claim rests." Taylor, 2011 WL 3880881, at *3. Further, the similarity of the other incidents renders the alleged policy plausible. Griego, 100 F. Supp. 3d at 1213. The claims plausibly allege that the Board has a custom or practice of retaliating against employees who oppose discrimination and includes highly specific information that goes beyond "minimal elaboration." Id. Accordingly, solely for purposes of the present Motion [#73] seeking amendment, the Court finds that Defendants fail to show that the amendment is futile, and the Court recommends that the Motion [#73] be granted.
IV. Conclusion
Accordingly, for the reasons set forth above,
IT IS HEREBY RECOMMENDED that the Motion [#73] be GRANTED and that the Third Amended Complaint [#73-1] be accepted for filing.
This necessarily results in the removal of the following claims from the Second Amended Complaint [#34]: (1) the discrimination portion (not the retaliation portion) of Plaintiff's second claim under Title VII, asserted against the District, (2) the entirety of the third claim under the equal protection clause of the Fourteenth Amendment, asserted against all Defendants, and (3) the entirety of the fourth claim regarding retaliation under Title VI, asserted against the District. Proposed Third Am. Compl. [#73-1] at 24-28. --------
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (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). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: July 23, 2020
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge