Civil Action No. 1:18-cv-02514-WJM-SKC
RECOMMENDATION RE: MOTION FOR SUMMARY JUDGMENT [#80]
Plaintiff Dr. Youssef Moudden is a former Research Associate and Lecturer in the Departments of Aerospace Engineering Sciences (AES) and Atmospheric and Oceanic Sciences (ATOC) at Defendant University of Colorado at Boulder. [#13 at ¶1.] He identifies his race as Black / African American, and his national origin as Moroccan. In June 2007, the University hired Moudden as a Research Associate with AES. [#32 and #33 at ¶1.] In May 2016, Moudden emailed Defendant Dr. John Cassano to inquire about teaching opportunities. [#80 ¶1.] After submitting his CV and participating in an interview, Moudden was hired as a part-time lecturer to teach ATOC 1050 for the Fall 2016 semester. [Id. at ¶¶2-5.]
The Court uses "[#___.]" to refer to specific docket entries in CM/ECF.
Moudden did not allege his race or national origin in the Amended Complaint, but that pleading does reference his Charge of Discrimination filed with the Equal Employment Opportunity Commission. His Charge identifies his race and national origin as indicated.
Moudden inquired about teaching positions in previous years; however, any claims related to those jobs have been dismissed as time barred. [See #71.]
Moudden has admitted all but seven of Defendants' Statement of Undisputed Facts. [#85.] However, as this Court will explain, it nevertheless recommends finding all of Defendants' facts to be undisputed.
After the semester began, Moudden's Learning Assistants ("LA") approached Dr. Melissa Nigro, the coordinator of the LA program, about their concern Moudden had not engaged them in his class as expected. [Id. at ¶¶6-7.] When Nigro approached Moudden about the issue, he asked Nigro whether she was "trying to micromanage [his] teaching." [Id. at ¶8; #80-9.] In addition, students voiced concerns to the program assistant and contacted the Department Chair, Defendant Dr. Cora Randall, with concerns about Moudden's class. [#80 at ¶9.] As a result of these complaints, Randall conducted a peer review of Moudden's class and met with him to discuss the review and the student's comments. [Id. at ¶¶11-12.] Despite this, Moudden continued to struggle with the LAs and another student complained about Moudden's class, including that Moudden was unapproachable. [Id. at ¶¶13-14.] In Randall's experience as Department Chair, it was unusual to have this many concerns raised about an instructor in a single semester. [Id. at ¶15.] In an email exchange, dated October 11, 2016, Cassano concluded (and Randall agreed) that based on the ongoing problems with Moudden, he would not hire him for future lecturer positions. [Id. at ¶16; #80-15.] Sixteen days later, on October 27, 2016, Cassano hired another instructor to teach ATOC 1050 for the Spring 2017 semester. [#80 at ¶26.]
Moudden disputes he continued to struggle with the LAs, stating one of the LAs was happy with the experience. [#85 at ¶13.] However, Moudden has not supported this assertion with any admissible evidence, and even if he had, it does not create a disputed issue of fact as to whether he continued to struggle with the other three LAs. Thus, Defendants' fact #13 should be treated as undisputed by appropriate evidence.
Moudden also denies this but offers neither evidence nor argument to the contrary. [#85 at ¶15.] This fact is undisputed by appropriate evidence.
Moudden argues Cassano and Randall previously excluded him from employment opportunities. As noted, any previous instances of failure to hire are not claims in this case. And even if they failed to hire Moudden previously, it does not create a disputed issue of fact over their October 11, 2016 decision not to consider him for future employment.
On November 9, 2016, Moudden inquired about "any teaching vacancies in ATOC in the spring, summer or fall semesters" of 2017. [Id. at ¶20.] Randall responded that ATOC was "not looking for any lecturers" at that time. [Id. at ¶21.] Moudden then brought this lawsuit, asserting discrimination based on race and national origin, retaliation, and hostile work environment [#13]; however, only two claims remain—discrimination in violation of Title VII and denial of equal protection under 42 U.S.C. § 1983. [#64, #71.] Defendants now seek summary judgment on these claims. [#80.] Moudden argues disputed issues of fact preclude summary judgment and warrant submission to a jury. [#85.] For the following reasons, the Court RECOMMENDS the Motion be GRANTED and judgment be entered in Defendants' favor.
Moudden proceeds pro se; thus, the Court liberally construes his pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). But the Court does not act as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Pro se plaintiffs must "follow the same rules of procedure that govern other litigants." Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
STANDARDS OF REVIEW
Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S. Postal Serv., 812 F.2d 621, 623 (10th Cir. 1987). The Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
Plaintiff claims he was not hired because of his race and national origin, and he brings claims under Title VII and 42 U.S.C § 1983. [#13 at ¶¶123-131, 138-145.] Defendants contend Moudden cannot establish a prima facie case of failure to hire because there is no genuine dispute as to whether Moudden applied for a lecturer position. According to Defendants, because Moudden never applied, there is no failure to hire. [#80 at pp.8-10.] The Court need not resolve this issue because the Court concludes Moudden has not made a showing of pretext under McDonnell Douglas.
Moudden offers no direct evidence of impermissible discrimination, and therefore, the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), governs his claims. --------
The McDonnell Douglas framework involves a three-step analysis. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). "First, the plaintiff must prove a prima facie case of discrimination. If the plaintiff satisfies the prima facie requirements, the defendant bears the burden of producing a legitimate, nondiscriminatory reason for its action." Id. "If the defendant makes this showing, the plaintiff must then show that the defendant's justification is pretextual." Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1226 (10th Cir. 2000).
Here, Defendants claim their legitimate, non-discriminatory reason for not hiring Moudden was the unusually high number of complaints regarding his performance. Moudden has offered no competent evidence suggesting this reason is pretextual.
To establish a genuine issue of material fact as to pretext, a plaintiff must adduce evidence demonstrating the defendant's "proffered non-discriminatory reason is unworthy of belief." Pinkerton v. Colo. Dep't of Transp., 563 F.3d 1052, 1065 (10th Cir. 2009). The plaintiff can meet this standard by producing evidence of "such weaknesses, implausibilities, inconsistencies, incoherencies, 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." Id.; see also Johnson v. Weld Cty., Colo., 594 F.3d 1202, 1211 (10th Cir. 2010). If the plaintiff "advances evidence upon which a factfinder could conclude  the defendant's allegedly nondiscriminatory reasons for the employment decisions are pretextual, the court should deny summary judgment." Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1134 (10th Cir. 2010).
Moudden argues Defendants' reasons are demonstrably pretextual because he "received many accolades from students," and he provides three emails from separate students complimenting his class. [#85 at p.7.] First, these emails were apparently not disclosed to Defendants during the discovery process [#86 at p.5 n.2], and therefore, Moudden "is not allowed to use that information . . . on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). Moudden has not attempted to file a surreply "or any other document endeavoring to explain why the failure to timely disclose is substantially justified." Kiernan v. Alpine Credit, Inc., No. 17-cv-01410-NYW, 2018 WL 2335705, at *5 (D. Colo. May 23, 2018) (precluding use of undisclosed document to support an opposition to summary judgment). Thus, the Court concludes this evidence is not admissible to support his opposition. Second, even if the evidence were admissible, these emails do not create a disputed issue of fact. That Moudden may have received compliments from some students does not contradict the fact he also received complaints from students, his LAs, and the LA coordinator, Dr. Melissa Nigro.
Moudden also points to his peer reviews from Defendants Randall and Cassano to support his argument that his performance was not unsatisfactory. [#85 a p.6.] But much like the emails from his students, the fact Moudden received some compliments in his peer reviews does not contradict the existence of complaints or negative remarks from those reviews, nor does it contradict the fact that in Defendant Randall's experience, it was unusual for an instructor to receive so many complaints in a single semester. To be sure, all of these facts can be true at the same time without causing Defendants' non-discriminatory reasons for not hiring Moudden to be weak, implausible, inconsistent, incoherent, or contradictory.
While Moudden may disagree with Defendants' reason for deciding not to hire him, his subjective belief is insufficient to warrant submitting the case to a jury. See DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970-71 (10th Cir. 2017). It is not this Court's role to "second guess the business judgment of the employer." Dewitt v. Sw. Bell Tel. Co., 845 F.3d 1299, 1307 (10th Cir. 2017). Instead, the inquiry is "whether Defendants honestly believed the legitimate, nondiscriminatory reasons it gave for its conduct and acted in good faith on those beliefs." Id. (citing Johnson v. Weld Cty., 594 F.3d 1202, 1217 (10th Cir. 2010)) (internal punctuation omitted). Here, the undisputed evidence shows Defendants Randall and Cassano chose not to hire Moudden due to the unusual number of complaints (in a single semester) regarding his performance. [#80 at ¶¶15-16; #80-5 at ¶¶14-15; #80-15.] Without any evidence of pretext, Defendants are entitled to judgment in their favor on Moudden's Title VII claim.
Further, Moudden's equal protection claim fails for the same reasons as the Title VII claim. See Burns v. Bd. of Cty. Comm'rs, 330 F.3d 1275, 1281, 1283 (10th Cir. 2003) (§ 1983 equal protection claims alleging race or national origin discrimination are evaluated under the McDonnell Douglas burden-shifting framework). Without evidence of pretext, judgment should also be entered in Defendants' favor on this claim.
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Based on the foregoing, the Court RECOMMENDS the Motion for Summary Judgment [#80] be GRANTED and judgment be entered in favor of Defendants. DATED: January 25, 2021.
BY THE COURT:
S. Kato Crews
United States Magistrate Judge 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, and waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140, 148-53 (1985); Makin v. Colorado Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).