HomeMy WebLinkAbout2016CV00966 - ARAUJO & GONZALES V. CITY OF FORT COLLINS, ET AL - 019 - PLAINTIFFS' FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No: 16-cv-00966-CBS
KENNYBERG ARAUJO, and
FRANCIS GONZALES,
Plaintiffs,
v.
THE CITY OF FORT COLLINS, a municipality;
DONALD VAGGE, former Deputy Chief of Police, in his individual capacity, and
GARY SHAKLEE, Police Sergeant, in his individual capacity,
Defendants.
FIRST AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiffs Detective Kennyberg Araujo and Sergeant Francis Gonzales, through their
attorneys Qusair Mohamedbhai and Laura B. Wolf of RATHOD | MOHAMEDBHAI LLC, hereby
submit their First Amended Complaint and Jury Demand against the above named Defendants
and allege for their First Amended Complaint as follows:
I. INTRODUCTION
1. Plaintiffs Detective Kennyberg Araujo (“Det. Araujo” or “Plaintiff Araujo”)
and Sergeant Francis Gonzales (“Sgt. Gonzales” or “Plaintiff Gonzales”) have suffered
ongoing discrimination based on their race and national origin as well as retaliation
throughout their employment with the Fort Collins Police Department (“FCPD”), in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C § 2000e et seq.
and the Civil Rights Act of 1866, 42 U.S.C. § 1981. The culture of discrimination as well as
the specific acts alleged herein were perpetrated and perpetuated by Defendants City of Fort
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Collins (“Fort Collins” or “Defendant Fort Collins”), former Deputy Chief Donald Vagge
(“Deputy Chief Vagge” or “Defendant Vagge”), and Sergeant Gary Shaklee (“Sgt. Shaklee”
or “Defendant Shaklee”).
2. Unfortunately, the experiences of Det. Araujo – who is Latino/Hispanic and
from Brazil – and Sgt. Gonzales – who is Latino/Hispanic and of Mexican heritage – are not
unique to them. For decades, the FCPD has fostered and condoned a culture of
discrimination against Latino/Hispanic officers, which is evidenced in its hiring and
promotional practices as well as its disparate treatment of Latino/Hispanic officers in its
disciplinary decisions and performance evaluations. Complaints of discrimination by these
Latino/Hispanic officers have been met with retaliation in the form of demotions, transfers,
denials of promotion and special assignment, and constructive discharge. Deputy Chief
Vagge and Sgt. Shaklee have actively participated in and directed the discrimination and
retaliation against Det. Araujo and Sgt. Gonzales, causing both officers great financial and
emotional hardship.
3. Sgt. Gonzales, described in one annual review as “the gold standard” for task
force sergeants, has been repeatedly passed over for promotion to lieutenant for the last
fifteen years. Despite Sgt. Gonzales’s exemplary resume and thirty-five years of service
with the FCPD, his failure to be promoted is unsurprising as the FCPD has only ever
promoted one Latino/Hispanic officer to position of lieutenant, Lt. John Pino. Deputy Chief
Vagge has been the driving force blocking Sgt. Gonzales from advancing in his career. In
July 2016, after becoming more vocal about the discrimination he was facing as well as
serving as a witness for two Latino/Hispanic officers in support of their complaints of
discrimination, Sgt. Gonzales was passed over for a special assignment to School Resources
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Officer (“SRO”) Sergeant despite being the most qualified candidate.
4. Det. Araujo, praised as having “the essentials to be an exceptional officer,”
likewise did not experience the type of career advancement he envisioned. Under the
hypercritical supervision of Sgt. Shaklee, Det. Araujo was set up to fail; his white
colleagues, meanwhile, were given the encouragement and support to succeed. The
environment established by Sgt. Shaklee was overtly discouraging to Latino/Hispanic
officers, whom he disparagingly refers to as “tonks” behind their backs. Not only did Det.
Araujo face unparalleled criticism from Sgt. Shaklee, but Sgt. Shaklee took active measures
to isolate Det. Araujo from the members of his team, just as he has done with other
Latino/Hispanic officers in the past. After bringing complaints of discrimination against Sgt.
Shaklee to Deputy Chief Vagge, Det. Araujo was subjected to retaliation in the form of
additional reprimands, suspension from all collateral-duty assignments, and reduced hours
and pay. Det. Araujo was constructively discharged in June 2015 and now works as a police
officer with the Denver Police Department.
II. JURISDICTION AND VENUE
5. Jurisdiction of this Court is invoked under 28 U.S.C. §§ 1331 and 1343.
This action is authorized and instituted under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and 42 U.S.C. § 1983.
6. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) and 42 U.S.C. §
2000e-5(f)(3) because the unlawful employment practices alleged herein were committed
within the jurisdictional boundaries of the United States District Court for the District of
Colorado.
7. All procedural prerequisites for filing this lawsuit have been met. With regard
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to Det. Araujo’s Title VII claim, Det. Araujo timely filed a Charge of Discrimination alleging
race and national origin discrimination against Fort Collins with the Equal Employment
Opportunity Commission (“EEOC”).
8. A Right to Sue letter was issued to Det. Araujo on February 2, 2016. The
original Complaint and Jury Demand was filed within ninety (90) days of receiving the Notice
of the Right to Sue from the EEOC. Therefore, under 42 U.S.C. § 2000e-5(f)(1), Det. Araujo
has satisfied all procedural prerequisites to sue under Title VII for race and national origin
discrimination in federal court.
9. All other claims of discrimination and retaliation are brought under 42 U.S.C. §
1981, directly or through 42 U.S.C. § 1983, which contains no administrative exhaustion
requirements.
III. PARTIES
10. Plaintiff Detective Kennyberg Araujo (“Det. Araujo” or “Plaintiff Araujo”) is a
natural person who resides in Colorado, was an employee of the Fort Collins Police Department
from 2007 through 2015, and at all relevant times lived in Colorado.
11. Plaintiff Sergeant Francis Gonzales (“Sgt. Gonzales” or “Plaintiff Gonzales”) is a
natural person who resides in Colorado, has been an employee of the Fort Collins Police
Department since 1981, and at all relevant times lived in Colorado.
12. Defendant City of Fort Collins (“Fort Collins”) is a Colorado municipal
corporation. Fort Collins, through its agent the Fort Collins Police Department (“FCPD”), is the
current employer of Plaintiff Gonzales and is the former employer of Plaintiff Araujo. Fort
Collins is the proper entity to be sued under 42 U.S.C. § 1981, through 42 U.S.C. § 1983, and is
also an employer within the meaning of Title VII.
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13. Defendant Deputy Chief Vagge (“Deputy Chief Vagge” or “Defendant Vagge”),
former Deputy Chief of Police of the FCPD, is being sued in his individual capacity. At all times
relevant to this action, Defendant Vagge was a final policymaker for Fort Collins.
14. The actions of Deputy Chief Vagge, as more particularly described herein, were
undertaken individually and as a final policymaker for Fort Collins. Specifically, Defendant
Vagge was an authorized decisionmaker for Fort Collins in his role as Deputy Chief of the FCPS
such that any and all of his decisions adopting a particular course of action represents an act of
official government policy. See Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). Chief
of Police John Hutto (“Chief Hutto”) delegated to or authorized Deputy Chief Vagge’s conduct
described herein, thereby making Deputy Chief Vagge a final policymaker. See id. Defendant
Vagge’s unlawful actions were reflective of his creation of and conformity with a long standing
practice of discrimination based upon race and national origin, which had been condoned,
permitted, or otherwise encouraged within the FCPD. Defendant Vagge’s conduct, as more
specifically described herein, was undertaken within the course and scope of his employment as a
supervisor in the FCPD and under color of law.
15. Defendant Sergeant Gary Shaklee (“Sgt. Shaklee” or “Defendant Shaklee”) is
being sued in his individual capacity. Sgt. Shaklee is currently employed by the FCPD as a
police sergeant, and he is the former supervisor of Det. Araujo.
16. All actions of Defendant Shaklee, as more particularly described herein, were
undertaken by Defendant Shaklee individually and were reflective of Defendant Shaklee’s
conformity with a long standing practice of discrimination based upon race and national origin,
which had been condoned, permitted, or otherwise encouraged within the FCPD by Defendants
Fort Collins and Vagge, as well as Chief Hutto. Defendant Shaklee’s conduct, as more
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specifically described herein, was undertaken within the course and scope of his employment as a
supervisor in the FCPD and under color of law.
IV. GENERAL ALLEGATIONS
I. The Fort Collins Police Department Has Fostered and Condoned a Culture of
Discrimination Against Latino/Hispanic Officers for Decades
17. The FCPD has a long standing and ongoing policy, practice, or custom of holding
Latino/Hispanic officers and applicants to a higher standard than similarly situated white officers
and applicants.
18. The FCPD’s policy, practice, or custom of discriminating against Latino/Hispanic
officers and applicants, as compared to white officers and applicants, is evidenced, in part,
through FCPD’s discrimination in its promotional and special assignment opportunities, its
disparate disciplinary actions, its highly subjective performance evaluations, and its hiring
process.
A. The FCPD Has a Policy, Practice, or Custom of Systematically Discriminating
Against Latino/Hispanic Officers by Routinely Denying Them Promotional
Opportunities
19. The FCPD’s policy, practice, or custom of discriminating against Latino/Hispanic
officers is evidenced by its regular and repeated denial of promotions of Latino/Hispanic officers
that are more or equally qualified candidates as compared to their white counterparts.
20. The FCPD uses a highly subjective promotional process to hide its discriminatory
practices, essentially requiring its Latino/Hispanic officers to test out at number one for even a
chance at a promotion.
a) While test results are considered in the promotional process, the Executive Staff
interview holds the most sway over whether a candidate is promoted.
b) The Executive Staff interview is the only step of the process in which there is no
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transparency.
c) The Executive Staff is typically all-white or else does not adequately represent
the minority population of Fort Collins.
21. At least in the last three decades, no Latino/Hispanic officer has ever been
promoted to a supervisory position in the FCPD without testing out number one in the
application process, while many white candidates are regularly promoted based on subjective
criteria excusing their lower scores.
22. Even after testing out at number one, most Latino/Hispanic officers are not
promoted, leading many Latino/Hispanic officers to leave the FCPD.
23. In the 1970s, Latino/Hispanic Officer John Martinez (“Officer Martinez”) was
denied a promotion to sergeant despite having testing out as the top candidate.
24. Officer Martinez was told that Fort Collins was not ready for a Latino/Hispanic
sergeant.
25. Soon thereafter, Officer Martinez left the FCPD for the private sector.
26. In 1999, Lieutenant John Pino (“Lt. Pino”) became the first and only
Latino/Hispanic officer to have ever been promoted to lieutenant in the FCPD’s history.
27. Lt. Pino’s promotion came only after he tested out as the number one candidate.
28. White candidates who do not test out as the top candidate are regularly promoted
due to subjective criteria and the discriminatory biases of the Executive Staff.
29. Defendant Fort Collins has been aware of the decades-long struggle experienced
by Latino/Hispanic officers in the FCPD for at least three decades.
a) In the 1980’s, the Coloradoan newspaper published a piece entitled, “Hispanic
officers still face bias.”
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b) The article detailed the bias faced by Latino/Hispanic officers both in the Fort
Collins community and from within the FCPD.
30. Despite this awareness, Fort Collins has taken no steps to end the culture of
discrimination within the FCPD or to foster a more inclusive environment for its Latino/Hispanic
officers.
31. In taking no action against this unlawful behavior, Fort Collins has ratified the
discriminatory conduct of its supervisors and final policymakers.
B. The FCPD Has a Policy, Practice, or Custom of Discriminating Against
Latino/Hispanic Officers by Holding Them to a Higher Standard than their White
Counterparts in Disciplinary Matters
32. The FCPD’s policy, practice, or custom of discriminating against Latino/Hispanic
officers is evident in the disparate discipline given to Latino/Hispanic officers as compared to
similarly situated white officers.
33. Latino/Hispanic officers in the FCPD are regularly disciplined for conduct either
condoned or overlooked when taken by white officers.
34. For example, in or around 2011, the Fort Collins City Council requested a
uniformed presence during their council sessions.
35. Officer Jason Atencio, a Latino/Hispanic male, was assigned the shift during a
particularly cold winter day.
36. Because of the sub-zero conditions, Officer Atencio left his patrol car locked and
running, knowing that he was expected to have his car ready for an emergency response if he
was called out of the council session.
37. Officer Atencio received a letter of reprimand at the direction of Lt. Russell Reed
(“Lt. Reed”), who is white, because leaving a patrol car running while unattended is a violation
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of FCPD policy.
38. Despite being explained the circumstances, Lt. Reed refused to remove the
discipline from Officer Atencio’s personnel file.
39. Meanwhile, in November 2014, Lt. Reed left his FCPD vehicle unattended and
running for nearly four hours.
40. An officer who observed the vehicle made a verbal complaint to Patrol Division
Deputy Chief Jerry Schiager, who is white.
41. Lt. Reed’s only explanation for having left his vehicle running and unattended
was that he had become distracted.
42. Although Lt. Reed acknowledged having violated FCPD policy on the grounds
that he had become distracted, Deputy Chief Schiager refused to write up Lt. Reed.
43. This disparate treatment is just one example of the ongoing discrimination
suffered by Latino/Hispanic officers, who receive disparate and disproportionate discipline as
compared to their white counterparts.
C. The FCPD Has a Policy, Practice, or Custom of Discriminating Against
Latino/Hispanic Officers During its Hiring Process
44. The FCPD’s policy, practice, or custom of discriminating against Latino/Hispanic
officers begins during its hiring process, where Latino/Hispanic applicants are treated less
favorably than white applicants.
45. For example, in 2007, Bryce Gonzales (“Bryce”) applied for a sworn officer
position with the FCPD.1
46. Bryce submitted his application at the same time as Tim Brennan (“Mr.
Brennan”), a white male.
1 Bryce Gonzales is Sgt. Gonzales’s son. He will be referred to by his first name for ease of reference.
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47. Both Bryce and Mr. Brennan completed and passed the oral board process but
failed the psychological exam.
48. Bryce was told that due to these results, he would not be allowed to continue
through the final phases of the hiring process.
49. Bryce was also prohibited from retesting with the FCPD for eighteen months.
50. Meanwhile, white training sergeant David Haywood overrode Mr. Brennan’s
psychological test results, allowing him to complete the hiring process and become a sworn
officer.
51. No explanation was ever provided for this override, which violates FCPD policy,
nor was any reason given as to why only Mr. Brennan was offered this preferential treatment.
52. After becoming eligible for reapplication, Bryce reapplied with the FCPD.
53. Bryce graduated along with fellow recruits Chris Renn, David Lindsay, and
Dustin Weir, all of whom are white.
54. Chris Renn, David Lindsay, Dustin Weir, and Bryce were placed in the Field
Training Officer (“FTO”) Program.
55. The FTO Program is intended to provide a standardized program to facilitate an
officer’s transition from the academic setting to the actual performance of general law
enforcement duties of the Agency.
56. Far from being standardized, Bryce was bounced around to several different
training officers during his four phases of training.
57. Upon information and belief, Bryce’s white counterparts were given more
standardized training and each successfully completed their probationary period.
58. At the end of the probationary period, Bryce was notified by white Patrol Deputy
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Chief Jim Szakmeister and Sgt. Haywood that he did not successfully complete his final rotation:
the work program.
59. Unlike other probationary officers who fail a rotation, Bryce was not given the
option to extend his probation.
60. Upon information and belief, white officers who have been allowed to extend past
a failed work program include Joel Tower, Scott Crumbaker, and Leslie Taylor.
61. Bryce was also told that while he may find a career elsewhere, he could never
again apply for a sworn officer position with the FCPD.
62. Megan Savage, a white woman, was allowed to reapply to the FCPD after failing
the FTO Program.
63. These discriminatory practices have led to an underrepresentation of
Latino/Hispanic officers on the FCPD as compared to the ethnic makeup of Fort Collins.
64. While Latinos/Hispanics make up approximately 14% of the population of Fort
Collins, only approximately 6% of the officers within the FCPD are Latino/Hispanic.
D. The FCPD Has a Pattern, Practice, or Custom of Retaliating Against
Latino/Hispanic Officers Who Bring Complaints or Who Aid Those Bringing
Complaints of Race Discrimination
65. In 2012, Lt. Pino brought his concerns of systemic and persistent race
discrimination to the attention of the FCPD.
66. Lt. Pino was subsequently removed from his post on the Northern Colorado Drug
Task Force (“NCDTF”) in retaliation.
67. Upon information and belief, Lt. Pino is the only lieutenant to have ever been
removed from the NCDTF.
68. With the exception of Lt. Pino, for the last fifteen years all lieutenants to have
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completed a rotation with the NCDTF have immediately thereafter been promoted to a Deputy
Chief position within the FCPD, including Deputy Chiefs Dodd, Schiager, and Yeager.
69. In 2014, Plaintiff Araujo brought his concerns of systemic and persistent race
discrimination to the attention of the FCPD.
70. Plaintiff Araujo brought a grievance, initiated an internal investigation, and filed
EEOC charges in response to the ongoing race discrimination he was facing at the hands of
Defendant Shaklee.
71. In retaliation for bringing these complaints, Plaintiff Araujo was issued a written
reprimand, removed from his collateral-duty assignments, suffered a reduction in pay, and was
constructively discharged.
72. Plaintiff Gonzales assisted in both Lt. Pino’s and Plaintiff Araujo’s internal
investigations by serving as a witness for each individual.
73. During the process for each investigation, Plaintiff Gonzales was notified by
separate individuals that Defendant Vagge had “blackballed” him throughout his career at the
FCPD, specifically by blocking his promotion to lieutenant.
74. After assisting in these investigations, Plaintiff Gonzales suffered multiple forms
of retaliation.
a) After assisting in these investigations, Plaintiff Gonzales for the first time failed
to make the eligibility list for promotion to lieutenant during an application
process.
b) In or around June 2016, Plaintiff Gonzales was denied special assignment to
SRO Sergeant despite being the most qualified candidate.
c) Plaintiff Gonzales is not presently being considered for the interim lieutenant
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position available at the FCPD despite having exceptionally served in the same
role for nine months from June 2010 through March 2011.
d) Plaintiff Shaklee is being considered for the interim lieutenant position despite
being the center of repeated complaints of race-based discrimination throughout
his career with the FCPD.
75. The FCPD, receiving such complaints of systematic race discrimination, has been
on notice of serious allegations of discrimination, yet it has taken no actions to remedy the
situation.
76. In taking no action against this unlawful behavior, Fort Collins has ratified the
discriminatory conduct of its supervisors and final policymakers.
77. The FCPD has created or fostered a policy, practice, or custom of systemically
retaliating against those bringing complaints or aiding others in bringing complaints of race
discrimination.
II. Defendants Vagge and Shaklee Have Perpetuated and Deepened the Culture of
Discrimination Against the FCPD’s Latino/Hispanic Officers Throughout Their
Careers
78. The FCPD’s policy, practice, and custom of discrimination described above has
been perpetuated and deepened by two individuals in particular: Defendant Vagge, a final policy
maker for Fort Collins, and Defendant Shaklee, a supervisor within the FCPD.
79. The discriminatory and retaliatory conduct of Defendants Vagge and Shaklee has
been repeatedly and consistently ratified by Defendant Fort Collins.
A. Defendant Vagge
i. Final Policymaker
80. While Deputy Chief, Defendant Vagge was delegated final decisionmaking
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authority with respect to the promotional process within the FCPD Investigation Department.
81. In his role as final policymaker within the FCPD Investigation Department,
Defendant Vagge repeatedly discriminated against Sgt. Gonzales by actively blocking his
promotion to lieutenant over the course of fifteen years.
82. In his role as final policymaker within the FCPD Investigation Departments,
Defendant Vagge failed to take corrective actions against Sgt. Shaklee, supporting and approving
Sgt. Shaklee’s discriminatory and retaliatory conduct towards Latino/Hispanic Officers including
Det. Araujo.
ii. Discriminatory Conduct
83. Up until his retirement in 2014, Deputy Chief Vagge had been able to
discriminate against Latino/Hispanic officers primarily by pulling strings behind the scenes.
84. For example, in 2012, Deputy Chief Vagge’s hypercritical and inaccurate
evaluation of Lt. Pino resulted in Lt. Pino being the only NCDTF Commander ever to be
removed from that post.
85. Lt. Pino also happens to be the only Latino/Hispanic Task Force Commander in
the NCDTF’s history.
86. After decades of remaining silent, Lt. Pino brought a grievance against Deputy
Chief Vagge for his hypercritical evaluation and relentless race discrimination.
87. Plaintiff Gonzales was interviewed for purposes of the investigation and made
statements in support of Lt. Pino’s claims of discrimination.
88. Most of Lt. Pino’s witnesses were never contacted by HR, let alone questioned.
89. After collecting little evidence on behalf of Lt. Pino, Police Chief John Hutto and
Fort Collins’s HR Department ruled that there was insufficient evidence to show that Lt. Pino
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had been unfairly treated or discriminated against on account of his race.
90. During or immediately after his grievance process was complete, Lt. Pino was
removed from his post as lieutenant of the NCDTF.
91. Little to no disciplinary actions were taken against Defendant Deputy Chief
Vagge.
92. In taking no action against this unlawful behavior, Fort Collins has ratified the
discriminatory conduct of Defendant Vagge.
B. Defendant Shaklee
93. Defendant Shaklee has taken a hands-on role in discriminating against
Latino/Hispanic officers throughout his career with the FCPD.
94. Sgt. Shaklee uses racial slurs and stereotypes when referring to Latino/Hispanic
officers and individuals.
a) Defendant Shaklee refers to Latino/Hispanic officers and individuals as “tonks.”
b) Tonk is derogatory slang used to describe an unlawful immigrant living in the
United States.
c) After Lt. Pino was transferred from the NCDTF, Defendant Shaklee referred to
him as “lazy and incompetent,” an obvious racial stereotype, and said that he
“had no business being a commander at the Task Force.”
d) Upon Plaintiff Gonzales receiving a commendation for helping transfer sod to a
mixed-income Hispanic community, Defendant Shaklee made a racially charged
comment amongst fellow officers about Plaintiff Gonzales being the appropriate
recipient of an award for moving grass.
e) Sgt. Shaklee could not contain his laughter when listening to a hostile voicemail
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referring to Plaintiff Araujo as a “wetback.”
95. From approximately 2002-2003, while working as a detective in the NCDTF
under the command of Plaintiff Gonzales, Defendant Shaklee openly targeted and discriminated
against a Latino/Hispanic female officer, Margaret Figuerora O’Brien.
96. After failing to correct his behavior despite repeated intervention and counseling
from Plaintiff Gonzales, Defendant Shaklee was removed from the NCDTF.
97. Despite having been removed from his post for his discriminatory conduct,
Defendant Shaklee was thereafter promoted to sergeant.
98. Once promoted, Defendant Shaklee used his authority to more widely and
severely discriminate against Latino/Hispanic officers.
99. Defendant Shaklee began a systemic campaign of pushing out Latino/Hispanic
officers by falsely claiming that he had received complaints about the officer, thereby justifying
an investigation into their behavior.
100. Defendant Shaklee would receive approval to initiate the investigation from
Defendant Vagge, who either knew or should have known that the alleged complaints were
falsified.
101. When the falsification of these complaints were brought to his attention,
Defendant Vagge turned a blind eye to Sgt. Shaklee’s gross misconduct.
102. Defendant Shaklee’s discriminatory and retaliatory conduct was motivated by his
desire to secure the resignation or termination of the FCPD’s Latino/Hispanic officers.
103. In taking no action against this unlawful behavior, Fort Collins and Deputy Chief
Vagge have ratified the discriminatory conduct of Defendant Shaklee.
C. Fort Collins Ratified the Discriminatory Behaviors of Defendants Vagge and
Shaklee, Perpetuating the Policy, Practice, and Custom of Discrimination within
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the FCPD
104. Over the past decade, two independent surveys were conducted of FCPD
employees, one by Dr. Kim Miller and another by an unknown specialist.
105. Dr. Miller conducted a survey on behalf of Lodge 3 of the Fraternal Order of
Police, the results of which were highly critical of Defendant Vagge’s management style and his
practice of targeting employees and allowing others to do so.
106. Upon receiving these results, Defendant Fort Collins conducted another survey,
which validated Dr. Miller’s results in all respects.
107. A prior survey conducted by Dr. Jack Digliani resulted in similar findings.
108. Despite the results of each of these findings, Defendant Fort Collins took no
action to address these concerns.
109. Indeed, notwithstanding the results of these surveys and multiple complaints by
Latino/Hispanic employees that they had been targeted for harassment and subjected to disparate
treatment, false complaints, and harassment by Defendants Vagge and Shaklee, Defendant Fort
Collins took no action to correct this behavior.
110. Despite repeated complaints of discrimination and retaliation against Sgt. Shaklee
throughout his career, the FCPD is presently considering Sgt. Shaklee for an interim lieutenant
position.
III. Plaintiff Gonzales Has Suffered from the Same Discriminatory and Retaliatory
Policies, Practices, and Customs as his Latino/Hispanic Counterparts
111. Sgt. Gonzales, who is Latino/Hispanic and of Mexican origin, has been subjected
to the same discrimination on the basis of his race and national origin as his Latino/Hispanic
counterparts.
112. During his 35-year tenure as an employee of Fort Collins, Plaintiff Gonzales has
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been discriminated against by the FCPD, Deputy Chief Vagge, and Defendant Shaklee, among
others.
A. Sergeant Gonzales Has Dedicated His Life to Serving His Community and is Well
Respected on the Force
113. Sgt. Gonzales joined the FCPD as a patrol officer on September 1, 1981.
114. Throughout the performance evaluations of Plaintiff Gonzales over the last three
and a half decades, Plaintiff Gonzales is commended for his exceptional relationship with his
team as well as members of the community.
115. In Plaintiff Gonzales’s 1995 annual review, his then-supervisor Sgt. Tim
McLellan wrote, “It’s not hard to describe Francis Gonzales. Exceptional character, excellent
detective and gang officer, leader, a person with outstanding morals and ethics, a superb team
player, an excellent speaker, a man with a great sense of humor, and a consummate worker.”
116. In 2001, soon after Plaintiff Gonzales became a sergeant, Lt. Jim Broderick wrote
that Sgt. Gonzales “is the ‘gold standard’ that all past, present and future task force sergeants will
be measure[d] by.”
117. In 2007, Lt. Pino concluded his evaluation by writing, “In my interactions with
Francis, I have found him to be reliable, dependable, enthusiastic, [of] high personal integrity,
compassionate, and has a great sense of humor.”
118. In 2009, Lt. Broderick commented, “Previous evaluations have highlighted the
genuine care Francis has for his people. The impact this has on creating cohesive teams and high
esprit de corps within the shift cannot be underestimated.”
119. The above quotes are only a sampling from a large pool of extremely positive
performance evaluations that Sgt. Gonzales has earned throughout his career with the FCPD.
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B. Sergeant Gonzales Was Discriminated Against on the Basis of His Race and
National Origin from the Start of His Career with the FCPD
120. Since the beginning of Plaintiff Gonzales’s employment with the FCPD, Plaintiff
Gonzales has been subjected to race and national origin discrimination.
121. Plaintiff Gonzales was initially hired as a patrol officer in 1981.
122. After receiving little training from unenthusiastic supervisors, Plaintiff Gonzales
was unable to successfully complete his probationary period, resulting in an extension of his
probationary period in 1982.
123. Upon information and belief, the four white officers hired on the same date as Sgt.
Gonzales – Daniel Preller, Jan Herendeen, John Bradshaw, and Judy Swenson – were provided
with more thorough training and more willing mentors such that their probationary periods were
not extended.
124. An extended probationary period begins an officer’s career with a setback.
125. After becoming a sworn officer, Sgt. Gonzales was assigned to Lt. Perman’s
command, who is white.
126. Although Sgt. Gonzales was outperforming several veteran officers in the platoon,
Lt. Perman unrelentingly criticized Sgt. Gonzales’s work.
127. Lt. Perman also interfered with Sgt. Gonzales’s work performance, writing him
up for minor incidents while turning a blind eye to the same behavior of white officers under his
command.
128. Lt. Perman’s discriminatory motives came to light in 1988, when Lt. Perman
yelled at Sgt. Gonzales, “If you run into my car, I’ll have you working in Andersonville for the
rest of your life.”
129. Andersonville is a primarily Hispanic neighborhood.
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130. Sgt. Gonzales reported the incident to his supervisor, who prepared a written
complaint to Lt. Deryle O’Dell and Commander David Feldman.
131. The complaint stated, in part, “Other minority officers could easily perceive this
as an offer of proof that the City is not an Equal Employment Opportunity [Employer]. . . . [F]or
a representative of management to make such ethnic slurs only condones and precipitates others
to copy the same behavior.”
132. No actions were taken to correct Lt. Perman’s behavior until HR became
involved, at which time Lt. Perman apologized to Sgt. Gonzales.
133. Upon information and belief, Lt. Perman was never disciplined for making this
racially charged comment or for his other discriminatory behavior.
134. In failing to discipline Lt. Perman for his discriminatory behavior, Fort Collins
has ratified the discriminatory conduct of Lt. Perman as well as the discriminatory culture of the
FCPD.
C. Deputy Chief Vagge Actively Took Steps to Prevent Plaintiff Gonzales from
Being Promoted to Lieutenant on the Basis of Plaintiff Gonzales’s Race and
National Origin
135. Deputy Chief Vagge actively discriminated against Plaintiff Gonzales on the basis
of Sgt. Gonzales’ race and national origin.
136. Plaintiff Gonzales had his first encounter with Defendant Vagge when Deputy
Chief Vagge was a sergeant in the administration wing of the FCPD and Plaintiff Gonzales was
still a detective.
137. In or around 1990, Plaintiff Gonzales was accused by Defendant Vagge of
cheating because he helped a police officer candidate prepare for her interview process.
138. Despite having engaged in the same conduct regularly taken by white officers,
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Plaintiff Gonzales was disciplined for this incident.
139. Fearing that Defendant Vagge would block his promotion to sergeant several
years later, Plaintiff Gonzales made sure to test out as the top candidate in order to ensure his
promotion.
140. After being promoted, Lt. Pino warned Sgt. Gonzales that he would have to test
out at number one if he hoped to become a lieutenant without Deputy Chief Vagge blocking him.
141. Sgt. Gonzales began applying for a lieutenant position in 2002. Despite having
been the most qualified candidate throughout a number of application processes, he has never
been promoted. Throughout the years, the highly subjective and non-transparent Executive Staff
interview has been cited as the reason for why a non- Latino/Hispanic candidate was promoted
over Sgt. Gonzales.
142. From July 2010 through the end of March 2011, Sgt. Gonzales served as Interim
Lieutenant for the Late Week Day shift.
143. Sgt. Gonzales performed this role exceptionally well, exceeding the expectations
of Captain Jim Szakmeister.
144. During this time period, Plaintiff Gonzales applied for a full-time lieutenant
position.
145. Two white officers, Sgts. Russell Reed and David Haywood, also applied for a
full-time lieutenant position.
146. Both white candidates were promoted, while Sgt. Gonzales was held back.
147. Approximately three years later, nearly each of Lt. Reed’s officers bid off of his
shift due to his poor leadership skills.
148. Despite performing extremely well in every promotional process, the FCPD has
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relied on subjective criteria to deny Sgt. Gonzales the promotion he justly deserves.
149. In 2012 and 2014, Sgt. Gonzales was explicitly told that Deputy Chief Vagge had
“blackballed” him from promotion throughout his career.
150. The final policymaker with respect to Sgt. Gonzales’s promotion to lieutenant has
at all relevant times been Deputy Chief Vagge.
D. Defendant Shaklee Discriminated Against Sgt. Gonzales on the Basis of His Race
and National Origin
151. Sgt. Shaklee followed his pattern of race-based discrimination in his actions
toward Sgt. Gonzales.
152. In or around 2011, Plaintiff Shaklee began surveilling Plaintiff Gonzales without
reason or explanation, ultimately confronting Plaintiff Gonzales about his whereabouts on certain
days.
153. Sgt. Shaklee is not and never has been Sgt. Gonzales’s supervisor.
154. That same year, Sgt. Shaklee told Sgt. Gonzales that he had received complaints
from fellow supervisors that Sgt. Gonzales had not made himself available to them.
155. Upon information and belief, Sgt. Shaklee sought to use these fabricated
complaints to launch an unjustified investigation into Sgt. Gonzales.
156. After speaking with the alleged complainants, Sgt. Gonzales discovered that no
such complaints had been made.
157. In or around 2014, Sgt. Gonzales received a commendation for local volunteer
work in which he transferred donated sod to a mixed-income Hispanic community to provide
green areas for the children to play on.
158. Upon Sgt. Gonzales’s receipt of the award, Sgt. Shaklee commented to a group of
officers, “It’s very appropriate that he would receive a commendation for moving grass.”
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E. In Retaliation for Bringing and Assisting Others in Bringing Complaints of
Discrimination, Sgt. Gonzales was Subjected to Adverse Employment Actions
and Continues to be Discriminated Against
159. Plaintiff Gonzales testified and assisted in two separate investigations of
discrimination by serving as a witness in support of the internal complaints of Lt. Pino in 2012
and of Plaintiff Araujo in 2014.
160. Testifying and assisting in investigations of discrimination are protected activities.
161. As a result of assisting in the investigations, Sgt. Gonzales continued to be
“blackballed” by Deputy Chief Vagge with respect to his promotional opportunities.
162. Sgt. Gonzales failed to make the eligibility list for promotion to lieutenant for the
first time in his career after assisting in an investigation of discrimination.
163. In or around June 2016, Plaintiff Gonzales was also passed over for special
assignment to SRO Sergeant despite being the most qualified candidate for the job.
164. A less-qualified white candidate was selected for the SRO Sergeant’s position in
lieu of Sgt. Gonzales.
165. Plaintiff Gonzales had sought out the SRO Sergeant position for over a decade,
making his interest well known to his teammates and supervisors.
166. Considering his substantial experience with and dedication to the local school
district, a number of strong recommendation letters were written on behalf of Sgt. Gonzales’s
assignment to the SRO Sergeant position by representatives of the local schools.
167. Despite Sgt. Gonzales’s significant qualifications, a white sergeant named Laura
Lunsford was chosen for the position.
168. Sgt. Lunsford has virtually no experience with the local schools and had not
expressed an ongoing interest in the position.
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IV. Plaintiff Araujo Has Suffered from the Same Discriminatory and Retaliatory
Policies, Practices, and Customs as His Latino/Hispanic Counterparts
169. Det. Araujo, who is Latino/Hispanic and Brazilian, has been subjected to the same
discrimination on the basis of his race and national origin as his Latino/Hispanic counterparts.
170. Det. Araujo was born and raised in Brazil and is of Brazilian descent.
171. Det. Araujo is fluent in Portuguese, Spanish, and English.
172. Prior to immigrating to the United States and joining the FCPD, Det. Araujo
served in the military, earning the rank of lieutenant.
A. Detective Araujo Was on Track to Become a Successful FCPD Officer until He
Was Assigned to Sgt. Shaklee’s Supervision
173. Det. Araujo was hired by the FCPD as a patrol officer in 2007.
174. In Det. Araujo’s first performance evaluation, his then-supervisor Sgt. Byrne
wrote, “Kennyberg has the essentials to be an exceptional officer. He genuinely believes in the
mission of FCPD and has a heart for service.”
175. During his next rotation in 2008, Det. Araujo was assigned to Sgt. Shaklee’s
command.
176. Sgt. Shaklee used his first performance evaluation of Det. Araujo to deliver overly
harsh criticism, issue Det. Araujo a written reprimand, and extend Det. Araujo’s probation.
177. The written reprimand was issued for having violated FCPD policy requiring all
officers to submit police reports before the end of their shift for any police action taken during
that shift.
178. White Officer Mike McGregor, who was hired in the same class as Det. Araujo,
received the same reprimand.
179. While Officer McGregor went on to complete his probationary period at the
scheduled time and rotate to another shift, Det. Araujo was put on a work plan and kept under
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Sgt. Shaklee’s watch, with the written reprimand cited as the sole reason.
180. The extension of his probationary period had significant ripple effects on Det.
Araujo’s career advancement and income, as the delay regularly prevented him from applying
for assignments and promotions for not having the requisite non-probationary years on the force.
181. In addition, all pay raises for Det. Araujo were delayed by six months, the length
of his extended probation.
182. The other officers in his hiring class, none of whom were Latino/Hispanic, were
permitted to complete their probationary period on schedule and thus did not suffer from the
same career setbacks and reduced pay as Det. Araujo.
183. During that same year, Det. Araujo received an angry voicemail from a suspect in
a case who had been charged with assault and intimidation of a witness.
184. The suspect ranted, in part, “I can’t believe that the Fort Collins Police
Department would allow a wetback to walk out of the fields and hang a badge and gun and go
out in the streets to enforce the law.”
185. When Det. Araujo played Sgt. Shaklee the voicemail referring to Det. Araujo as a
“wetback,” Sgt. Shaklee began to laugh uncontrollably.
186. The following year, Sgt. Shaklee took active measures to prevent Det. Araujo’s
assignment to the SWAT team.
187. In 2009, Det. Araujo applied for special assignment to the SWAT team.
188. Despite Det. Araujo’s having outperformed the competition, Sgt. Shaklee told the
selection committee that they needed to go with someone else because Det. Araujo did not have
enough experience.
189. Justin Yeager, a white officer with less experience than Det. Araujo, was chosen
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for the position.
190. After Sgt. Shaklee left SWAT in 2010, Det. Araujo reapplied and was accepted
onto the SWAT team.
191. At that time, one of the selection committee members told Det. Araujo that the
committee had planned to select him for the open spot the year prior, but that Sgt. Shaklee
pressured the committee to select Officer Yeager.
192. In 2009, Plaintiff Shaklee was assigned as the sergeant of the NCDTF despite
having been removed as a detective from the unit in 2003 for having engaged in race-based
discriminatory conduct towards fellow officers.
193. In January 2012, Plaintiff Araujo was assigned to the NCDTF, a special
assignment given to only the most promising officers.
194. Immediately after being assigned to the NCDTF, Det. Araujo experienced
hostility from Sgt. Shaklee.
195. Sgt. Shaklee micromanaged Det. Araujo’s work, provided overly critical
feedback, and wrote scathing performance reviews of Det. Araujo.
196. Sgt. Shaklee actively interfered with Det. Araujo’s ability to perform his job while
criticizing him for having fewer arrests, drug and money seizures, cases filed, and closed cases.
197. Sgt. Shaklee actively avoided communicating with Det. Araujo, preferring to
discuss matters with non- Latino/Hispanic detectives even where Det. Araujo was the lead case
officer.
B. In 2014, Sgt. Shaklee Fabricated Complaints Against and Initiated an Unjustified
Investigation into Det. Araujo in a Successful Scheme to Push Him Out of the
FCPD
198. On July 1, 2014, Sgt. Shaklee issued Det. Araujo a written reprimand for having
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allegedly violated FCPD policy requiring police officers to submit reports on the same day as
their police activity.
199. The only incidents cited by Sgt. Shaklee in support of the write-up were instances
in which Det. Araujo served solely as an interpreter for his fellow officers’ investigations.
200. Pursuant to FCPD policy, translators have an ethical obligation to remain neutral,
while police officers have an obligation to investigate in a non-neutral manner. For this reason,
when acting solely as a translator and not as an investigator, an officer typically does not submit
a police report.
201. On February 6, 2014, Sgt. Shaklee texted Det. Araujo that the two needed to talk
about “this Spanish speaking case.”
202. Sgt. Shaklee was referring to a case in which his wife, Det. Jaclyn Shaklee, had
asked Det. Araujo for his translation services.
203. According to Sgt. Shaklee, his wife had complained to him that Det. Araujo never
wrote a police report after Det. Araujo conducted a phone call in Spanish on behalf of one of her
cases.
204. Sgt. Shaklee claimed that he had also received a complaint from Sgt. Kristy
Volesky regarding Det. Araujo’s failure to complete a police report in another case under the
same circumstances.
205. After Det. Araujo tried to explain the difference between acting as a neutral
translator and an investigative bilingual officer, Sgt. Shaklee asked Det. Araujo if he had
provided any other translation services in the recent past.
206. Det. Araujo responded that he had assisted Det. Siobhan Jungmeyer with the
translation of 179 Portuguese text messages in August 2013.
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207. Sgt. Shaklee knew of these translation services, as he had explicitly directed Det.
Araujo to assist in the translation of the text messages.
208. Det. Araujo admitted to Sgt. Shaklee that he had not submitted a report in the
three cases about which he was being questioned.
209. Despite having explained the reason for failing to file these reports, Sgt. Shaklee
ordered Det. Araujo to write the reports.
210. Det. Araujo immediately completed the reports per Sgt. Shaklee’s orders.
211. Nearly five months later, on July 1, 2014, Det. Araujo received a written
reprimand for having failed timely to complete police reports, with two of the three translation
cases cited as proof.2
212. In the reprimand, Sgt. Shaklee claimed to have only learned of one of the cases on
February 7 and the other on February 18, despite having spoken to Det. Araujo about both on
February 6, 2014.
213. Sgt. Shaklee omitted any and all mention of his wife’s case, the alleged impetus
for the February 6 conversation.
214. Sgt. Shaklee made knowingly false statements and omitted key information in his
written reprimand, in violation of FCPD policy.
215. The reprimand itself also evidences a form of disparate treatment. Although each
of the primary officers from the three translation cases had failed to submit timely reports of their
police work and had violated other FCPD policies with respect to properly recording Det.
Araujo’s assistance, only Det. Araujo was reprimanded for violating FCPD policy. Out of these
individuals, only Det. Araujo is Latino/Hispanic.
2 Although the reprimand is dated May 28, it was not presented to Det. Araujo until July 1, 2014.
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216. As of July 1, 2014, Det. Jaclyn Shaklee had still not submitted a police report
regarding Det. Araujo’s phone call in her case.
217. Upon information and belief, Det. Jaclyn Shaklee, who is white, has received no
discipline for failing to submit this report.
218. Following this reprimand, Det. Araujo contacted two of the officers who had
allegedly made complaints about him, both of whom insisted that they had done no such thing.
219. At least one of these officers notified Det. Araujo that she had been contacted by
Sgt. Shaklee as part of an investigation he had been conducting into Det. Araujo.
220. At this time, Det. Araujo became aware that Sgt. Shaklee had initiated an
investigation into his conduct, a violation of FCPD policy and the union’s Collective Bargaining
Agreement, both of which require that the subject of an investigation receive timely notification
of it.
C. Det. Araujo Brought Complaints of Discrimination Against Sgt. Shaklee, To No
Avail
221. On or around July 15, 2014, Det. Araujo filed a formal grievance with Defendant
Vagge asking that Sgt. Shaklee’s written reprimand be rescinded and that appropriate action be
taken in response to Sgt. Shaklee’s misconduct.
222. Deputy Chief Vagge summarily denied the request.
223. Deputy Chief Vagge refused to address any of the complaints lodged against Sgt.
Shaklee, as the issues raised, “in my opinion, aren’t narrowly focused on the issue of the written
reprimand and therefore are beyond the scope of a disciplinary grievance.”
224. Det. Araujo appealed the denial of his grievance to Chief Hutto, the present chief
of police.
225. Chief Hutto summarily denied the appeal.
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226. According to Chief Hutto, he “spoke at length with Deputy Chief Vagge in order
to gain a better understanding of the issues at hand.”
227. Chief Hutto took no steps to speak personally with Det. Araujo regarding the
grievance.
228. Chief Hutto consulted solely with Deputy Chief Vagge even though Defendant
Vagge had been at the center of an investigation of race discrimination against Lt. Pino just two
years prior.
229. By relying solely on Deputy Chief Vagge’s perspective and decision, Chief Hutto
delegated to Deputy Chief Vagge final decisionmaking authority with respect to Det. Araujo’s
grievance.
230. After failing to have his complaints against Sgt. Shaklee taken seriously by both
Deputy Chief Vagge and Chief Hutto, Det. Araujo initiated a formal investigation with Internal
Affairs (“IA”).
231. In the IA complaint, Det. Araujo alleged that Sgt. Shaklee had violated sixteen of
the Administrative Investigation Procedures.
232. Despite the number of alleged violations, IA only reviewed the matter within the
lens of two policies: (1) Expectations of Conduct, Policy 340.3.5 and (2) Administrative
Investigations, Policy 1020.6.4(b).
233. IA overruled the complaint as to Sgt. Shaklee’s violation of Policy 340.3.5.,
finding that Sgt. Shaklee had not made false claims despite there being uncontroverted evidence
that Sgt. Shaklee manufactured complaints in order to justify issuing Det. Araujo a reprimand.
234. IA sustained the complaint as to Sgt. Shaklee’s violation of Policy 1020.6.4(b),
which requires that investigations be conducted in a fair and impartial manner.
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235. Despite this finding, the written reprimand was never removed from Det. Araujo’s
personnel file.
236. It is also believed that Sgt. Shaklee received no discipline for his misconduct.
237. In taking no disciplinary action against Sgt. Shaklee, Fort Collins has ratified Sgt.
Shaklee’s discriminatory and unlawful behavior.
238. During this same time period, Fort Collins’s HR Department conducted its own
investigation of Sgt. Shaklee, finding there to be insufficient evidence to prove race-based
discrimination.
239. Sgt. Shaklee told HR that the entire situation was a misunderstanding.
240. Sgt. Shaklee told HR that he and Det. Araujo were good friends and that their
children played together at his house on a regular basis, which is not true.
241. These statements were never corroborated with Det. Araujo, who is believed to be
the only Fort Collins detective on the NCDTF never to have been invited to Sgt. Shaklee’s home.
242. Sgt. Gonzales assisted in this investigation just as he had for Lt. Pino.
243. Based on HR’s findings, it appears that Sgt. Gonzales’s statements were not taken
seriously.
244. On October 7, 2014, Det. Araujo filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) alleging race and national origin discrimination.
D. After Bringing Complaints of Discrimination, Detective Araujo Suffered
Unlawful Retaliation, Resulting in his Constructive Discharge
245. In January 2015, several months after grieving his written reprimand, initiating an
IA investigation, and filing a charge of discrimination with the EEOC, Det. Araujo received a
confidential memorandum from his lieutenant supervisor, Lt. David Pearson.
246. The memo stated that since the July 1, 2014 written reprimand, Lt. Pearson had
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“become aware of other performance related issues.”
247. After outlining a number of cases awaiting reports by Det. Araujo, Lt. Pearson
explicitly prohibited Det. Araujo from performing any collateral duty assignments for a period of
four months, resulting in his inability to work any overtime.
248. The letter also makes significant demands of Det. Araujo regarding his
completion of a number of assignments in a short timeframe and calls for the micromanagement
of Det. Araujo by Sgt. Shaklee, the person he had just accused of race-based discrimination
against him.
249. The letter closes, “Failure to perform to these expectations could result in
suspension from your collateral duties, removal from the Northern Colorado Drug Task Force,
and/or disciplinary action.”
250. To Det. Araujo’s knowledge, Sgt. Shaklee and Lt. Pearson have not disciplined
any white officers who regularly fail to submit police reports before their shift ends for the day,
including officers on the same cases listed in Lt. Pearson’s letter.
251. Lt. Pearson himself failed to submit a timely report in at least one case on which
Det. Araujo’s retaliatory discipline was based.
252. It is believed that Lt. Pearson was never disciplined for failing to timely submit
this report.
253. The ongoing discrimination and retaliation suffered by Det. Araujo over many
years resulted in his constructive discharge in June 2015.
254. Det. Araujo resigned after the discriminatory and retaliatory environment became
too intolerable to continue working for the FCPD.
255. Det. Araujo now works as a police officer with the Denver Police Department.
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V. Fort Collins Has Continually Failed to Take Seriously Complaints of Race
Discrimination
256. As discussed above, the FCPD has been aware of its culture of discrimination
against Latino/Hispanic officers for decades.
257. In taking no action to correct this unlawful behavior, Fort Collins has engaged in
discrimination and has ratified the discriminatory conduct of its supervisors and final
policymakers.
258. In 2012 and 2014, the FCPD witnessed formal complaints of race discrimination
being brought against Deputy Chief Vagge and Sgt. Shaklee.
259. Although these complaints were investigated by HR, it was apparent to Sgt.
Gonzales, a witness for both complainants, that the accusations were not being taken seriously.
260. Based on his interviews with HR, Sgt. Gonzales was not surprised when the
investigations exonerated Defendant Vagge and Defendant Shaklee.
261. Chief Hutto recently emailed the entire FCPD stating,
It has come to my attention that a message has gone out to the bargaining unit
acknowledging that there may be people within the Department who have
experienced discrimination, retaliation, or been targeted in some way and that these
actions have had an adverse effect on their careers. It concerns and troubles me
that there may be folks in our organization that feel this way. If you are one then I
am urging you to not remain silent. Find a way to make your voice heard. My door
is always open and, as I have said in the past, I am ready to listen. There are
numerous other paths you could take and I encourage you to do whatever you are
most comfortable with. Go to the FOP, your supervisor, or a co-worker. If at the
end of the day even one person feels this way it is unacceptable to me. You have
my personal promise that your concerns will be taken seriously and addressed.
262. Chief Hutto has been aware of the culture of discrimination suffered by his
Latino/Hispanic officers for many years now, but he has failed time and again to take seriously
the concerns of those whose lives and careers have been affected by this discriminatory work
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environment.
263. Despite Chief Hutto’s recent email insisting that he takes complaints of
discrimination seriously, Sgt. Shaklee is currently being considered for an interim lieutenant
position.
264. Sgt. Gonzales spent nine months successfully serving as interim lieutenant over
the Late Week Day Shift, receiving a glowing commendation for his efforts.
265. To Sgt. Gonzales’s knowledge, he is not being considered for the present interim
lieutenant position.
V. CLAIMS FOR RELIEF
FIRST CLAIM FOR RELIEF
Violation of Title VII, 42 U.S.C § 2000e-2(a)
Race and National Origin Discrimination
(Plaintiff Araujo Against Defendant Fort Collins)
266. Plaintiffs hereby incorporate all other paragraphs of this First Amended
Complaint as if fully set forth herein.
267. Plaintiff Araujo is Latino/Hispanic and Brazilian.
268. Based on his race and national origin, Plaintiff Araujo is a member of a class
of citizens protected by Title VII.
269. At all relevant times, Plaintiff Araujo performed the functions of his job
competently and was qualified for his position with Defendant Fort Collins.
270. Fort Collins treated Det. Araujo less favorably than his similarly situated non-
Latino/Hispanic and non-Brazilian counterparts.
271. Fort Collins, by and through the conduct of its employees and agents, has
unlawfully denied Plaintiff Araujo the benefits, privileges, promotional opportunities, and terms
and conditions of his employment due to his race and national origin.
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272. Plaintiff Araujo was subjected to adverse treatment because of his race and
national origin, including but not limited to denials of promotional opportunities and special
assignments, written reprimands, overly critical performance evaluations, reduced pay, and
denial of continued employment based on his race and national origin, as detailed above.
273. The effect of the practices complained of above has been to deprive Plaintiff
Araujo of equal employment opportunities and otherwise adversely affect his status as an
employee.
274. The unlawful employment practices complained of above were intentional.
275. The unlawful employment practices complained of above were done with malice
or reckless indifference to the federally protected rights of Plaintiff Araujo.
276. Fort Collins’s discriminatory actions did cause and will continue to cause Plaintiff
Araujo to suffer economic losses as well as severe emotional distress and other significant
injuries, damages, and losses.
277. The unlawful employment practices of Fort Collins and its agents, supervisors,
and employees directly and proximately resulted in such damages as may be proven at trial,
including but not limited to lost income and benefits; lost employment opportunities;
psychological, emotional, and mental anguish; distress, humiliation, embarrassment, and
degradation; pain and suffering; and Plaintiff Araujo’s attorneys’ fees and costs in bringing this
action.
SECOND CLAIM FOR RELIEF
Violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981
Race Discrimination
(All Plaintiffs Against Defendants Shaklee and Vagge in their Individual Capacities)
278. Plaintiffs hereby incorporate all other paragraphs of this First Amended
Complaint as if fully set forth herein.
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279. Plaintiff Araujo is Latino/Hispanic and Brazilian.
280. Plaintiff Gonzales is Latino/Hispanic and of Mexican origin.
281. Plaintiffs are thus members of protected classes under 42 U.S.C. § 1981. See St.
Francis Coll. v. Al-Khazraji, 481 U.S. 604, 611 (1987); Manzanares v. Safeway Stores, Inc., 593
F.2d 968, 970 (10th Cir. 1979); Zapata v. IBP, Inc., No. Civ. A. 93-2366-EEO, 1998 WL
717621, at *3 (D. Kan. Sept. 29, 1998).
282. Defendants Vagge and Shaklee discriminated against Plaintiffs in violation of 42
U.S.C. § 1981 based on their race.
283. Defendants Vagge and Shaklee were personally involved in and have an
affirmative link to the acts of discrimination suffered by Plaintiffs Araujo and Gonzales.
284. Defendants Vagge and Shaklee have unlawfully denied Plaintiffs the benefits,
privileges, promotional opportunities, and terms and conditions of their employment due to their
race.
285. Plaintiffs were subjected to adverse treatment because of their race, including but
not limited to denials of promotional opportunities and special assignments, written reprimands,
overly critical performance evaluations, reductions in pay, and denial of continued employment
based on their race, as detailed above.
286. Defendants Vagge and Shaklee treated Plaintiffs less favorably than their
similarly situated non-Mexican/Brazilian, non- Latino/Hispanic counterparts.
287. The effect of the practices complained of above has been to deprive Plaintiffs of
equal employment opportunities, otherwise adversely affect their status as employees, deprive
them of their right to make and enforce contracts, and deprive them of the full and equal benefit
of laws, because of their race.
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288. The unlawful employment practices complained of above were intentional.
289. The unlawful employment practices complained of above were done with malice
or reckless indifference to the federally protected rights of Plaintiffs.
290. Defendants Vagge’s and Shaklee’s discriminatory actions did cause and will
continue to cause Plaintiffs to suffer economic losses as well as severe emotional distress and
other significant injuries, damages, and losses.
291. The unlawful practices of Defendants Vagge and Shaklee directly and
proximately resulted in such damages as may be proven at trial, including but not limited to lost
income and benefits; lost employment opportunities; psychological, emotional, and mental
anguish; distress, humiliation, embarrassment, and degradation; pain and suffering; and
Plaintiffs’ attorneys’ fees and costs in bringing this action.
THIRD CLAIM FOR RELIEF
Violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981
Retaliation
(All Plaintiffs Against Defendants Shaklee and Vagge in their Individual Capacities)
292. Plaintiffs hereby incorporate all other paragraphs of this First Amended
Complaint as if fully set forth herein.
293. Defendants Vagge and Shaklee retaliated against Plaintiffs in violation of 42
U.S.C. § 1981.
294. Plaintiffs engaged in protected activity by opposing what they reasonably
believed were unlawful discriminatory employment practices prohibited by 42 U.S.C. § 1981
based on race, and/or by filing charges, testifying, assisting, or participating in an
investigation, proceeding, or hearing, and/or by being associated with someone who engaged
in one or more of these protected activities.
295. Plaintiffs’ protected activities include, but are not limited to, filing charges
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with the EEOC, filing internal grievances, reporting issues of race-based discrimination to
management and supervisors within Fort Collins, and assisting with internal investigations
of race discrimination.
296. In response to Plaintiffs’ protected conduct, Defendants Vagge and Shaklee
retaliated against them through adverse employment actions.
297. Defendants Vagge and Shaklee were personally involved in and have an
affirmative link to the acts of retaliation suffered by Plaintiffs Araujo and Gonzales.
298. Defendant Vagge’s and Shaklee’s retaliatory adverse employment actions against
Plaintiffs have included demotions, transfers, denials of promotion and special assignment,
reduction in pay, and constructive discharge, as discussed in detail above.
299. Defendants Vagge and Shaklee treated Plaintiffs more adversely than their
similarly situated counterparts who did not take part in protected conduct opposing race
discrimination in the workplace.
300. The unlawful employment practices complained of above were intentional.
301. The unlawful employment practices complained of above were done with malice
or reckless indifference to the federally protected rights of Plaintiffs.
302. Defendants Vagge’s and Shaklee’s retaliatory actions did cause and will continue
to cause Plaintiffs to suffer economic losses as well as severe emotional distress and other
significant injuries, damages, and losses.
303. The unlawful retaliatory practices and other acts or omissions of Defendants
Vagge and Shaklee directly and proximately resulted in such damages as may be proven at trial,
including but not limited to lost income and benefits; lost employment opportunities;
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psychological, emotional, and mental anguish; distress, humiliation, embarrassment, and
degradation; pain and suffering; and Plaintiffs’ attorneys’ fees in bringing action.
FOURTH CLAIM FOR RELIEF
Violation of 42 U.S.C. § 1981, Brought Through 42 U.S.C. § 1983
Discrimination on the Basis of Race
(All Plaintiffs Against Defendant Fort Collins)
304. Plaintiffs hereby incorporate all other paragraphs of this First Amended
Complaint as if fully set forth herein.
305. At all times relevant to this claim, Defendant Vagge, in his role as Deputy Chief,
was a final policymaker for Fort Collins.
306. At all times relevant to this claim, Defendants Vagge and Shaklee were acting
under color of state law in their capacities as Fort Collins law enforcement officers.
307. Plaintiffs Araujo and Gonzales had a clearly established right under the law of the
United States to the full and equal benefit of the laws, to equal employment opportunities, and to
make and enforce contracts.
308. At all times relevant to this claim, Defendants Fort Collins and Vagge maintained
longstanding policies, customs, or practices, and failed to properly train, supervise, and
discipline FCPD officers in a manner amounting to deliberate indifference with respect to
discrimination in the workplace.
309. Defendants Fort Collins and Vagge established policies, customs, and practices
promoting race-based discrimination while failing to discipline, train, and supervise Sgt. Shaklee
concerning his discriminatory treatment of Latino/Hispanic officers in the workplace.
310. At all times relevant to this claim, it was clearly established that supervisors could
not interfere with an employee’s right to the full and equal benefit of the laws, to equal
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employment opportunities, and to make and enforce contracts by discriminating against
employees on the basis of race.
311. Any reasonable supervisor acting under the color of state law knew or should
have known of these clearly established rights.
312. Defendant Shaklee engaged in discriminatory conduct that was objectively
unreasonable in light of the facts and circumstances confronting him, violating Plaintiffs’ rights
to the full and equal benefit of the laws, to equal employment opportunities, and to make and
enforce contracts.
313. Defendant Shaklee knew that his discriminatory conduct would result in
demotions, transfers, denials of promotional opportunities and special assignments, written
reprimands, overly critical performance evaluations, reduction in pay, and denial of continued
employment for Plaintiffs Araujo and Gonzales.
314. Defendant Shaklee engaged in the acts and omissions described herein pursuant to
the customs, policies, and practices of Fort Collins, which encourages, condones, tolerates, and
ratifies the unlawful discriminatory culture against its Latino/Hispanic officers.
315. Defendant Shaklee’s actions, as described herein, were undertaken intentionally,
maliciously, willfully, wantonly, and/or in reckless disregard of Plaintiffs’ federally protected
rights.
316. Defendants Fort Collins’s and Vagge’s policies, customs, and/or practices and
failure to properly monitor, train, supervise and discipline their employees were the moving
force and proximate cause of the violation of Plaintiffs’ federally protected rights.
317. The discrimination in violation of federal law suffered by Plaintiffs was a
foreseeable consequence of Defendants Fort Collins’s and Vagge’s actions and inactions.
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318. Defendants Fort Collins and Vagge were deliberately indifferent to the federal
rights of Fort Collins’s Latino/Hispanic employees by failing to properly train, monitor,
supervise, and discipline FCPD’s workforce with respect to discrimination in the workplace.
Defendants Fort Collins and Vagge could have and should have pursued reasonable methods of
training, monitoring, supervising, and disciplining FCPD employees.
319. Defendants Fort Collins’s and Vagge’s acts or omissions as described herein
deprived Plaintiffs of the rights, privileges, liberties, and immunities secured by the laws of the
United States of America, and caused them other damages.
320. As a direct result of Defendants Fort Collins’s and Vagge’s unlawful actions as
described above, Plaintiffs have suffered economic and non-economic injuries in an amount to
be proven at trial.
321. The acts or omissions of Defendants Fort Collins and Vagge directly and
proximately resulted in such damages as may be proven at trial, including but not limited to lost
income and benefits; lost employment opportunities; psychological, emotional, and mental
anguish; distress, humiliation, embarrassment, and degradation; pain and suffering; and
Plaintiffs’ attorneys’ fees in bringing this action.
FIFTH CLAIM FOR RELIEF
Violation of 42 U.S.C. § 1981, Brought Through 42 U.S.C. § 1983
Retaliation
(All Plaintiffs Against Defendant Fort Collins)
322. Plaintiffs hereby incorporate all other paragraphs of this First Amended
Complaint as if fully set forth herein.
323. At all times relevant to this claim, Defendant Vagge, in his role as Deputy Chief,
was a final policymaker for Fort Collins.
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324. At all times relevant to this claim, Defendants Vagge and Shaklee were acting
under color of state law in their capacities as Fort Collins law enforcement officers.
325. Plaintiffs Araujo and Gonzales had a clearly established right under the law of the
United States to the full and equal benefit of the laws, to equal employment opportunities, and to
make and enforce contracts.
326. At all times relevant to this claim, Defendants Fort Collins and Vagge maintained
longstanding policies, customs, or practices, and failed to properly train, supervise, and
discipline FCPD officers in a manner amounting to deliberate indifference with respect to
retaliatory conduct in the workplace.
327. Defendants Fort Collins’s and Vagge’s longstanding policies, customs, and
practices, and failure to train, supervise, and discipline its officers included failure to train
officers on avoiding and preventing retaliation against those who bring complaints of
discrimination or those who aid in the bringing of such complaints.
328. Fort Collins and Deputy Chief Vagge established policies, customs, and practices
of ignoring retaliatory conduct while failing to discipline, train, and supervise Sgt. Shaklee
concerning his retaliatory treatment of officers who engaged in protected conduct by opposing
race discrimination.
329. At all times relevant to this claim, it was clearly established that supervisors could
not interfere with an employee’s right to the full and equal benefit of the laws, to equal
employment opportunities, and to make and enforce contracts by discriminating against
employees on the basis of race.
330. Any reasonable supervisor acting under the color of state law knew or should
have known of these clearly established rights.
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331. Defendant Shaklee engaged in retaliatory conduct that was objectively
unreasonable in light of the facts and circumstances confronting him, violating Plaintiffs’ rights
to the full and equal benefit of the laws, to equal employment opportunities, and to make and
enforce contracts.
332. Defendant Shaklee knew that his retaliatory conduct would result in demotions,
transfers, denials of promotional opportunities and special assignments, written reprimands,
overly critical performance evaluations, reduction in pay, and denial of continued employment
for Plaintiffs Araujo and Gonzales.
333. Defendant Shaklee engaged in the acts and omissions described herein pursuant to
the customs, policies, and practices of Fort Collins, which encourages, condones, tolerates, and
ratifies the unlawful retaliatory culture against its Latino/Hispanic officers.
334. Defendant Shaklee’s actions, as described herein, were undertaken intentionally,
maliciously, willfully, wantonly, and/or in reckless disregard of Plaintiffs’ federally protected
rights.
335. Defendants Fort Collins’s and Vagge’s policies, customs, and/or practices and
failure to properly monitor, train, supervise and discipline their employees were the moving
force and proximate cause of the violation of Plaintiffs’ federally protected rights.
336. The retaliation in violation of federal law suffered by Plaintiffs Araujo and
Gonzales was a foreseeable consequence of Fort Collins’s and Deputy Chief Vagge’s actions and
inactions.
337. Defendants Fort Collins and Vagge were deliberately indifferent to the federal
rights of Fort Collins’s Latino/Hispanic employees by failing to properly train, monitor,
supervise, and discipline FCPD’s workforce with respect to retaliation in the workplace.
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Defendants Fort Collins and Vagge could have and should have pursued reasonable methods of
training, monitoring, supervising, and disciplining FCPD employees.
338. Defendants Fort Collins’s and Vagge’s acts or omissions as described herein
deprived Plaintiffs of the rights, privileges, liberties, and immunities secured by the laws of the
United States of America, and caused them other damages.
339. As a direct result of Defendants Fort Collins’s and Vagge’s unlawful actions as
described above, Plaintiffs have suffered economic and non-economic injuries in an amount to
be proven at trial.
340. The acts or omissions of Defendants Fort Collins and Vagge directly and
proximately resulted in such damages as may be proven at trial, including but not limited to lost
income and benefits; lost employment opportunities; psychological, emotional, and mental
anguish; distress, humiliation, embarrassment, and degradation; pain and suffering; and
Plaintiffs’ attorneys’ fees in bringing this action.
VI. PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their
favor and against Defendants, and award them all relief as allowed by law, including but not
limited to the following:
a. All declaratory relief and injunctive relief, as appropriate;
b. Actual economic damages, including but not limited to back pay, font pay,
and lost benefits, as established at trial;
c. Compensatory damages, including but not limited to those for future
pecuniary and non-pecuniary losses, emotional pain, suffering, inconvenience,
mental anguish, and other non-pecuniary losses;
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d. Liquidated damages for all claims as allowed by law, in an amount to be
determined at trial;
e. Punitive damages for all claims as allowed by law, in an amount to be
determined at trial;
f. Prejudgment and post-judgment interest at the highest lawful rate;
g. Attorneys’ fees and costs; and
h. Such further relief as justice requires.
PLAINTIFFS REQUEST A TRIAL TO JURY ON ALL ISSUES SO TRIABLE.
Respectfully submitted this 7th
day of September, 2016.
s/ Laura B. Wolf
Laura B. Wolf
Qusair Mohamedbhai
RATHOD | MOHAMEDBHAI LLC
2701 Lawrence Street, Suite 100
Denver, Colorado 80205
(303) 578-4400 (p)
(303) 578-4401 (f)
lw@rmlawyers.com
qm@rmlawyers.com
ATTORNEYS FOR PLAINTIFFS
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that, on this 7th day of September, 2016, a true
and correct copy of the foregoing FIRST AMENDED COMPLAINT AND DEMAND FOR
JURY TRIAL was served via electronic mail on the following:
J. Andrew Nathan
anathan@ndm-law.com
Cathy Havener Greer
cgreer@warllc.com
Marni Nathan Kloster
mkloster@ndm-law.com
Brendan L. Loy
bloy@warllc.com
Nicholas Christaan Poppe
npoppe@ndm-law.com
s/ Laura B. Wolf ___________
Laura B. Wolf
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