Romens v. City of Colo. Springs

Full title: ALAN J. ROMENS, Plaintiff, v. CITY OF COLORADO SPRINGS Defendant.

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Aug 3, 2015

Civil Action No. 13-cv-01441-RM-KLM (D. Colo. Aug. 3, 2015)

Opinion

Civil Action No. 13-cv-01441-RM-KLM

08-03-2015

ALAN J. ROMENS, Plaintiff, v. CITY OF COLORADO SPRINGS Defendant.

Judge Raymond P. Moore

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

I. INTRODUCTION

This matter is before the court on defendant City of Colorado Springs' (defendant) Motion to Dismiss plaintiff Alan J. Romens' (plaintiff) Complaint under Fed R.Civ.P. 12(b)(6). Defendant moves to dismiss, arguing that plaintiff's claims: (1) are barred by the applicable 2-year Statute of Limitations and (2) fail to state a claim. (ECF Nos. 10 and 21).

Plaintiff's Complaint alleges that defendant "maintains a policy, practice, procedure or custom of paying different wages to employees who perform the same or substantially similar work . . . in positions of Sworn Marshals and civilian Marshals" in violation of the "guarantees of the Equal Protection Clause of the Fourteenth Amendment" and 42 U.S.C. §1983. (ECF No. 1). Plaintiff brings this action against defendant, his former employer, alleging that defendant "adopted a policy of paying two groups of similarly situated individuals employed as marshals differently for performing the same work." (ECF NO.17, p. 1). Plaintiff contends that this policy created an ongoing "continuing violation of his Constitutional rights . . . every time he received a pay check from the City." (ECF No.17, p.4).

II. BACKGROUND

The following facts are gleaned from plaintiff's Complaint and, as required, are construed in the light most favorable to plaintiff. Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10^th Cir. 2007).

The City of Colorado Springs tasks the City of Colorado Springs Police Department (CSPD) with providing law enforcement and public safety operations for the City of Colorado Springs. (ECF No.1, p.2). The City Marshal's Unit is part of the CSPD and is established by the City Code of the City of Colorado Springs. Id. The CSPD employs both uniformed or sworn officers and civilian officers. Id.

Both types of officers are subject to the CSPD rules, regulations, physical fitness requirements and orders, must swear an oath, maintain valid Colorado P.O.S.T. certification¹ and be properly trained and qualified in the use of firearms and the PR-24 baton (or its equivalent). (ECF No.1. pp.2-5). Both types of officers are subject to the same chain of command and have duties including: providing court security, transporting prisoners to and from jail and court, serving arrest warrants, write and processes preparing adult and juvenile "re-writes" for the courts, enforcing parking and other City ordinances, conducting investigative work and working with other law enforcement agencies as necessary. (ECF No.1, pp.4-5).

1 Certification by the Peace Officers Standards and Training board.

Defendant employed plaintiff for approximately twenty-seven years and as a civilian officer for approximately four years. (ECF No.1, pp.6-7). While employed as a civilian officer, plaintiff performed all of the above listed duties but was paid at a lower salary base that the uniformed/sworn officers and unlike the sworn officers who received a paid 30-minute lunch break, was required to take a one-hour unpaid lunch break. Id. This pay and benefit disparity existed throughout plaintiff's employment as a civilian officer. (ECF No.1, p.8).

III. LEGAL STANDARDS

Defendant moves to dismiss under both Fed.R.Civ.P. 12(b)(1) and 12(b)(6); however, defendant concedes its motion is better styled solely under Fed.R.Civ.P. 12(b)(6). (ECF No. 21, p.1). The court will therefore address defendant's motion as one made only under Fed.R.Civ.P. 12(b)(6).

A. Standard for Fed.R.Civ.P. 12(b)(6) Dismissal:

A dismissal under Fed.R.Civ.P. 12(b)(6) is appropriate "only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff." Yoder v. Honeywell, Inc., 104 F.3d 1215, 1224 (10^{t h} Cir. 1997)(internal citations omitted), cert. denied, 522 U.S. 812, (1997). In considering a motion under this federal rule, the court's function 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. Id.,(quoting Miller v. Glantz, 948 F.2d 1562. 1565 (10^th Cir. 1991))(quotations omitted).

In doing so, the Court "must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." David v. City & County of Denver, 101 F.3d 1344, 1352 (10^{t h} Cir. 1996). However, relief must plausibly follow from the facts alleged. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007). Thus, even though modern rules of pleading are somewhat forgiving, "a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory." Bryson v. Gonzales, 534 F.3d 1282, 1286 (10^th Cir. 2008)(internal quotation marks and citation omitted).

B. Standard for Judicial Notice in Motion to Dismiss:

Ordinarily, consideration of material attached to or referenced by a defendant's motion to dismiss requires the court to convert the motion into one for summary judgment and afford the parties notice and an opportunity to present relevant evidence. Fed.R.Civ.P. 12(b); David v. City & County of Denver, 101 F.3d 1344, 1352 (10^{t h} Cir.1996). However, Fed.R.Evid. 201 allows a court at any stage of the proceeding, to take notice of "adjudicative" facts that fall into one of two categories: (1) facts that are "generally known within the territorial jurisdiction of the trial court;" or (2) facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201 (b) and (f). "Adjudicative facts are simply the facts of the particular case." United States v. Wolby, 133 F.3d 758, 764 (10^{t h} Cir.1998). A court has discretion to take judicial notice of such facts, whether requested or not. Fed.R.Evid. 201 (c).

Matters of public record may be subject to judicial notice and considered in a Rule 12(b)(6) motion without converting the motion to dismiss into a motion for summary judgment. Grynberg v. Koch Gateway Pipeline Co., 390 F.3d 1276, 1278 n.1 (10^{t h} Cir. 2004)(court may take judicial notice of matters of public record). Thus, it is well established that courts may take judicial notice of statutes. United States v. Coffman, 638 F.2d 192, 194 (10^{t h} Cir.1980); see also Roemer v. Board of Public Works, 426 U.S. 736, 742 n.4 (1979); Ray v. Aztec Well Service Co., 748 F.2d 888, 889 n.2 (10^th Cir. 1984). Statutes are considered legislative facts, established truths, facts or pronouncements that do not change from case to case but apply universally and are considered by the court to show their contents rather than to prove the truth of a matter. Coffman, 390 F.3d at 195; Tal v. Hogan, 453 F.3d 1244, 1245 n.24 (10^{t h} Cir. 2006).

C. Continuing Violation Doctrine:

Failing to file within the statutory period is not a complete bar to recovery; if a plaintiff can show a "continuing violation," relief is not time-barred. Purrington v. Univ. of Utah, 996 F.2d 1025, 1028 (10^th Cir. 1993). Under the continuing violation doctrine, a combination of discriminatory acts is treated as one continuous act that ends within the limitations period. Id. To invoke this doctrine, a plaintiff must show a series of related acts against a single individual, one or more of which falls within the limitations period. Mascheroni v. Board of Regents of Univ. of Cal., 28 F.3d 1554, 1561 (10^{t h} Cir.1994). To constitute a continuing violation these related acts must show an on going and "dogged pattern of discrimination, as distinguished from isolated and sporadic outbursts." Bennet v. Quark, Inc., 258 F.3d 1220, 1227 (10^{t h} Cir. 1993)(quotation omitted).

The well-established factors relevant to this determination are: (1) the subject matter of the acts—whether the violations constitute the same type of discrimination; (2) the frequency of the acts; and (3) the permanence of the acts—whether the nature of the violations should trigger an employee's awareness of the need to assert his rights and whether the consequences of an act would continue even in the absence of a continuing intent to discriminate. Id., (citing Bullington v. United Airlines, Inc., 186 F.3d 1301, 1310 (10^{t h} Cir. 1999)).

The third factor, permanence, reflects that the continuing violation doctrine is premised on the equitable notion that the statute of limitations should not begin to run until a reasonable person would be aware that his rights have been violated. Robbins v. Jefferson County Sch. Distr, R-1, 186 F.3d 1253, 1257 (10^{t h} Cir. 1999). While this factor permits a plaintiff to recover for discriminatory acts that occurred prior to the statutory limitations period if they are part of a continuing policy or practice that includes the act or acts within the statutory period, it is a doctrine to be narrowly applied in Section 1983 suits and is not intended to excuse plaintiffs from diligently pursuing their claims. Rassam v. San Juan Coll. Bd., 113 F.3d 1247 (10^{t h} Cir. 1997)(unpublished).

IV DISCUSSION

Plaintiff contends that defendant's adoption of a policy of "paying two groups of similarly situated individuals employed as marshals differently for performing the same work" violates plaintiff's constitutional right of equal protection. (ECF Nos. 1 and 17). Plaintiff asserts that even if the matters outside the pleadings are considered, his earlier EEOC charge of discrimination does not reveal awareness of his current claim at a point in time that would now bar his claim under the applicable Statute of Llimitations; his equal protection claim under Section 1983 does not have administrative exhaustion requirements and defendant's statute of limitations defense fails because of the continuing nature of the violation. (ECF No.17). Finally, plaintiff argues that his complaint should withstand dismissal because it is neither conclusory nor implausible but rather establishes that the marshals employed by defendant are similarly situated but, paid differently. (ECF Nos. 1 and 17, pp.10-14).

Defendant counters that plaintiff's EEOC charge demonstrates that plaintiff's claim is indeed time-barred because he specifically identified the claim underlying that charge as "equal pay for equal work." (ECF No. 21, pp.2-3). Defendant also notes that plaintiff's EEOC charge is dated June 4, 2010; that plaintiff filed his current claim on June 4, 2013 and thus appears to have relied on the three-year statute of limitations that applied to Section 1983 claims until Colorado in 1986, amended that to provide for a two-year statute of limitations. (ECF No.21, p.3, n.1). Finally defendant contends that plaintiff's claim is fatally flawed as a matter of law because the two types of marshals/officer employed by the CSPD as defined in Colorado statute are fundamentally different and thus defendant's pay practices that reflect a classification of CSPD employees based on their job duties and responsibilities are rational. (ECF No. 21, pp.6-10).

The Equal Protection Clause of the Fourteenth Amendment commands that no state shall "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike McGowan v. City of Eufala, 472 F.3d 736, 745 (10^th Cir. 2006). To support plaintiff's claim in the instant matter, plaintiff must establish that he was similarly situated to the uniformed/sworn officers in all relevant respects. Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10^{t h} Cir. 1997)("Similarly situated employees are those . . . . subject to the same standards governing performance evaluation and discipline."). An equal protection claim will fail "if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Copelin-Brown v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10^{t h} Cir. 2005).

Thus while in the context of defendant's motion to dismiss under 12(b)(6), I accept all of the allegations in the complaint as true, I must then consider these facts according to the deferential rational basis standard. Brown v. Zavaras, 63 F.3d 967, 971-72 (10^{t h} Cir. 1995). "To survive a motion to dismiss for failure to state a claim, a plaintiff must allege facts sufficient to overcome the presumption of rationality that applies to government classifications." Id. (quotation omitted).

In carefully considering the record in this matter, I have taken judicial notice of both the EEOC charge (ECF No.10, Ex.1), and the relevant statutes. (C.R.S. §§ 16-2.5-103; 16-2.5-105 and 16-2.5-145). Under a plain reading of the statute(s) authorizing certified police officers and noncertified peace officers², there is a discernable difference between the two categories of officers. The uncertified or civilian officer has limited law enforcement authority whereas the sworn/certified officer has unlimited law enforcement authority. Id.

2 C.R.S. § 16-2.5-103. Sheriff - undersheriff - certified deputy sheriff - noncertified deputy sheriff:
(1) A sheriff, an undersheriff, and a deputy sheriff are peace officers whose authority shall include the enforcement of all laws of the State of Colorado. . . . .
(2) A noncertified deputy sheriff or detention officer is a peace officer employed by a county or city whose authority is limited to the duties assigned by and while working under the direction of the chief of police, sheriff, an official . . . . .
(emphasis added)

In meeting the rational-basis standard, a legislature or government decision maker is not required to actually articulate, the purpose or rationale supporting its differentiation. Teigen v. Renfrow, 511 F.3d 1072, 1083 (10^{t h} Cir. 2007). Under the rational basis test, "[a]n equal protection claim will fail if there is any reasonably conceivable state of facts that could provide a rational basis for the classification." Id.

In fact, it is well established in this Circuit that the rationality of the governmental conduct at issue is presumed and a plaintiff bears the burden to overcome that presumption of rationality. Id. at 1086; see also Heller v, Doe, 509 U.S. 312, 320-21 (1993)(holding plaintiffs have the burden to establish that the policy is unconstitutional and to negative every conceivable basis which might support it, whether or not the basis has a foundation in the record"). Thus, a governmental designation must be upheld against an equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. Heller, 509 U.S. at 320.

Given this deferential standard, I will not address defendant's argument regarding the EEOC charge because under an equal protection analysis, the statutory authority for the two groups of police officers demonstrates that the two groups are not similarly situated. The two groups' differing levels of law enforcement authority provide defendant with a rational basis for differing pay grades. Treatment of dissimilarly situated groups in a dissimilar manner by the government does not violate the Equal Protection Clause. Plaintiff has therefore failed to allege facts indicating that similarly situated individuals were treated differently by the government actor and thus, has failed to state a claim upon which relief can be granted.

V. CONCLUSION

For the reasons stated above defendant's Motion to Dismiss (ECF No. 10) is GRANTED. Plaintiff's Complaint (ECF No.1) is DISMISSED. Each party is to bear his or its own attorney's fees and costs. IT IS SO ORDERED

DATED this 3rd day of August, 2015.

BY THE COURT:

/s/_________

RAYMOND P. MOORE

United States District Judge