HomeMy WebLinkAbout2018CV3204 - LORI FRANK V. CITY OF FORT COLLINS, TERENCE F. JONES AND JEROME SCHIAGER - 022 - DEFENDANT CITY OF FORT COLLINS AND TERRENCE JONES'S MOTION TO PARTIALLY DISMISS THE COMPLAINTIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:18-cv-03204-RBJ
LORI FRANK,
Plaintiff,
vs.
CITY OF FORT COLLINS, a municipality;
TERENCE F. JONES, former Interim Chief of Police, in his individual capacity; and
JEROME SCHIAGER, former Deputy Chief of Police, in his individual capacity,
Defendant.
______________________________________________________________________________
DEFENDANTS CITY OF FORT COLLINS’ AND TERENCE JONES’S MOTION TO
PARTIALLY DISMISS THE COMPLAINT (DOC. # 2)
______________________________________________________________________________
Defendants, City of Fort Collins and Terence F. Jones, by and through their attorneys Cathy
Havener Greer, and Kathryn A. Starnella, of Wells, Anderson & Race, LLC, and Jenny Lopez
Filkins, Senior Assistant Attorney, City of Fort Collins, and pursuant to Fed. R. Civ. P. 12(b)(1)
and (6), respectfully submit the following Motion to Partially Dismiss Lori Frank’s Complaint
(Doc. # 2).
INTRODUCTION
For approximately 14 years, Plaintiff Lori Frank allegedly received high praise for the
quality of her work as a Crime Analyst for the City of Fort Collins Police Department. See
Complaint, Doc. # 2 at ¶ 37. As a Crime Analyst, Ms. Frank was required and expected to collect
and analyze extensive data and to produce reports to assist the Police Department mitigate spikes
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in crime and allocate resources. Id. at ¶ 54. In November 2015, Plaintiff Frank was assigned to a
different supervisor, Defendant Jerome Schiager. Id. at ¶ 57. In his first performance review of
Ms. Frank’s work in May 2016, Defendant Schiager provided constructive criticism to help Ms.
Frank improve the quality and accuracy of her work as a Crime Analyst. Id. at ¶ 82. Defendant
Schiager observed that Ms. Frank’s work “did not represent good analysis” and noted “room for
improvement.” Id. at ¶ 83. Defendant Schiager’s observations of poor work quality, i.e.,
consistent errors and lack of analysis, continued through November 2016, when he placed Ms.
Frank on a performance improvement plan. See id., at ¶¶ 107, 117-19, 123, 124.
In the face of Defendant Schiager’s constructive criticism, Ms. Frank declined to take stock
of her shortcomings and to improve. Instead, she filed suit. In her suit, Ms. Frank latches onto a
theory of retaliation (Claims 3 and 4), convinced that the negative evaluations and performance
improvement plan resulted from a vendetta Defendant Schiager had because of a reprimand letter
he received in May 2014—two years prior to his first performance evaluation of her—following a
complaint she made to his supervisor. Id. at ¶¶ 70-74; see also ¶ 242-43. She further contends
that the negative evaluations and performance plan are products of gender discrimination (Claims
1 and 2). Id. at ¶ 235.
Ms. Frank also theorizes that pay disparities between her male Financial Analyst colleague
and her, a female Crime Analyst, are the product of intentional discrimination by the City rather
than due to the City’s methods for characterizing two distinguishable jobs (Claims 1, 2, and 7).
Id. at ¶¶ 227-232, 266-269. She further contends that Defendant Schiager violated her equal
protection rights by negatively evaluating her work and paying her, as a Crime Analyst, less than
a male Financial Analyst. Id. at ¶¶ 274-80. Defendant Jones (who became Interim Chief of Police
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in May 2017)1 also allegedly violated Ms. Frank’s equal protection rights by placing her job in the
lower paying Administrative category while placing her male colleague’s Financial Analyst job in
the higher paying Professional category. Id. at ¶¶ 284-84. Finally, without any support beyond
boilerplate allegations, Ms. Frank has tacked on federal and state law claims for age discrimination
(Claims 5 and 6). Id. at ¶¶ 248-263.
As discussed below, Ms. Frank’s Section 1983 claims are time-barred to the extent that
they rest on allegations that occurred outside the applicable two-year statute of limitations, i.e.,
December 14, 2016. Ms. Frank fails to state actionable age discrimination claims against the City
or an actionable Equal Protection claim against Defendant Jones. Thus, those claims’ dismissal is
warranted. Additionally, Defendant Jones is entitled to qualified immunity.
STANDARDS OF REVIEW
Pursuant to Fed. R. Civ. P. 12(b)(1), a complaint may be dismissed for lack of subject
matter jurisdiction. The existence of subject matter jurisdiction is a threshold question of law.
Madsen v. United States ex. rel. U.S. Army Corps of Eng’rs, 841 F.2d 1011, 1012 (10th Cir. 1987).
The plaintiff bears the burden of demonstrating that the court has subject matter jurisdiction over
the complaint. See Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a defendant may move
to dismiss a claim for “failure to state a claim upon which relief can be granted.” FED. R. CIV. P.
12(b)(6). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell
1 Complaint, Doc. # 2, at ¶ 159.
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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
ARGUMENT
I. Ms. Frank’s Section 1983 claims against the City are time-barred to the
extent they rest on alleged events that occurred outside the applicable two-
year statute of limitations.
Statute of limitations periods determine the time limitations on civil rights actions. See
Workman v. Jordan, 32 F.3d 475, 482 (10th Cir. 1994) (applying Colorado’s two-year limitations
period for personal injury actions to § 1983 claim); see also C.R.S. §§ 13-80-102(1)(g)
(articulating two-year statute of limitations for “[a]ll actions upon liability created by a federal
statute where no period of limitation is provided in said federal statute”); C.R.S. § 13-80-102(1)(i)
(articulating two-year statute of limitations for “[a]ll other actions of every kind for which no other
period of limitation is provided”).
The statute of limitations on § 1983 claims begins to run when the plaintiff knows or has
reason to know of the injury that is the basis of his claims. See Workman, 32 F.3d at 482. In this
case, the limitations period started no later than May 13, 2016, when Ms. Frank received her first
performance review from Defendant Schiager. See Complaint, Doc. # 2 at ¶ 82. Therefore, Ms.
Frank should have commenced this lawsuit in May 2018, about seven months earlier than she did.
Because Ms. Frank did not file her suit till December 14, 2018, her Section 1983 claims2 against
2 Ms. Frank’s Section 1983 claims are: Title VII gender discrimination (Claim 1); Title VII
retaliation (Claim 3); discrimination under the Age Discrimination in Employment Act (Claim
5); and Equal Pay Act violation (Claim 7).
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the City are time-barred to the extent the rest on alleged events that occurred before December 14,
2016.
II. Ms. Frank fails to state actionable claims for age discrimination under
federal and state law (Claims 5 and 6).
Claims 5 and 6 concern the City’s alleged violations of the Age Discrimination in
Employment Act of 1967 (ADEA) and the Colorado Anti-Discrimination Act (CADA).
Complaint, Doc. # 2 at 33-4. In support, Ms. Frank broadly alleges that the City paid her less than
her younger, male colleague (Erik Martin) and the City subjected her, but not that male colleague,
to negative performance evaluations and a performance plan because of her age. Complaint, Doc.
# 2 at ¶¶ 249-54.
Under the ADEA, employers may not use age as a basis to “discharge any individual or
otherwise discriminate against any individual with respect to compensation, terms, conditions, or
privileges of employment.” 29 U.S.C. § 623(a)(1). Likewise, under CADA, “it shall be
discriminatory . . . for an employer to refuse to hire, or discharge, to promote, or demote or to
discriminate in matters of compensation against any person otherwise qualified because of . . .
age[.]” COLO. REV. STAT. § 24-34-402(1). The same legal standard applies to age discrimination
claims brought under either the ADEA or CADA. See Dunham v. Neat Capital, Inc., No. 18-cv-
01210, 2018 U.S. Dist. LEXIS 181677, at *7 (D. Colo. Oct. 22, 2018) (unpublished) (citing
Bodaghi v. Dep’t of Nat’l Res., 995 P.2d 288, 297-98 (Colo. 2000) (applying McDonnell Douglas
Corp. v. Green framework to CADA claims)). To establish her disparate-treatment claim, Ms.
Frank must plausibly allege “that age was the ‘but-for’ cause of the employer’s adverse decision.”
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). Age must be “the factor that made a
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difference,” but it need not be the sole motivating factor. Jones v. Okla. Cty. Pub. Schs., 617 F.3d
1273, 1277-78 (10th Cir. 2010).
Ms. Frank’s age discrimination claim rests on circumstantial allegations. Therefore, to
withstand a motion to dismiss, she must plausibly allege a prima facie case of discrimination. See
Ash v. Aurora Pub. Sch., No. 18-cv-01280, 2019 U.S. Dist. LEXIS 4790, at **6-7 (D. Colo. Jan.
10, 2019) (unpublished). To state a prima facie age discrimination claim, Ms. Frank must
plausibly allege that (1) she belongs to a protected class, i.e., she was at least 40 years old; (2) she
was qualified for her Crime Analyst job; (3) she suffered an adverse employment decision(s) (i.e.,
imposition of a performance improvement plan and the classification of her job as administrative);
and (4) the circumstances give rise to an inference of unlawful discrimination. O’Connor v.
Consol. Coin Caterers Corp., 517 U.S. 308, 311-12 (1996) (applying the McDonnell Douglas
framework and noting that ADEA’s protections apply to individuals at least 40 years old); Colo.
Civil Rights Comm’n v. Big O Tires, Inc., 940 P.2d 397, 400 (Colo. 1997) (applying McDonnell
Douglas framework to CADA claim); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (1973). These elements of a prima facie claim help courts determine whether a plaintiff
has set forth a plausible claim. Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).
Defendant City of Fort Collins does not dispute that, at this pleadings stage, Ms. Frank
satisfies the first element of a prima facie age discrimination claim: Ms. Frank was at least 40
years old at the time of the alleged discipline and administrative job classification. See Complaint,
Doc. # 2, at ¶ 249. Ms. Frank, however, has not plausibly alleged that age was the “but-for” cause
of the imposed performance improvement plan and the administrative (as opposed to professional)
classification of her Crime Analyst job, which resulted in lower pay than Mr. Martin. For example,
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Ms. Frank touts the quality work she produced before Defendant Schiager became her supervisor
in November 2015, see, e.g., id., at ¶¶ 37-42, 47-48, 55-56, 128, but she does not allege any facts
to substantiate her broad claims that Mr. Schiager’s assessments of her work as “very poor
quality,” error-prone, and without good (or any) analysis were unwarranted, retaliatory, and
discriminatory. See, e.g., id. at ¶ 82-83, 107, 124. At most, she alleges that she “present[ed]
evidence that [the] criticisms of her performance were unfounded”—but she alleges no facts
regarding that “evidence.” See id. at ¶¶ 85, 108. Ms. Frank cannot rely on these conclusory
statements regarding her satisfactory work product to withstand a motion to dismiss. See, e.g.,
Ash, 2019 U.S. Dist. LEXIS 4790, at **8-10 (dismissing age discrimination claim that rested on
conclusory statements of satisfactory job performance); see also Khalik, 671 F.3d at 1191
(disregarding conclusory statements in favor of the factual allegations that provided a plausible
basis for liability).
As another example, throughout her Complaint, Ms. Frank ties the administrative (as
opposed to professional) classification of her Crime Analyst job to an alleged “systemic culture of
discrimination against women.” Id. at ¶¶ 17, 18, 166; see also ¶ 255. She does not tie it to
discrimination against people over 40 years of age until she gets to paragraph 258 of her complaint.
In sum, Ms. Frank does not plausibly allege that her age was the “but for” cause of the City’s
alleged actions. Therefore, dismissal of Ms. Frank’s age discrimination claims under state and
federal law is warranted.
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III. Ms. Frank fails to state an actionable Equal Protection claim and Defendant
Jones is entitled to qualified immunity (Claim 8).
A. Failure to state an Equal Protection claim.
In Claim 8, Plaintiff Frank alleges that Defendant Jones, in his individual capacity as
Interim Police Chief, violated her equal protection rights when he categorized her Crime Analyst
job as an administrative position, while he categorized Erik Martin’s Financial Analyst job as a
professional position. Doc. # 2 at ¶¶ 272-73, 284-85. As a result of the differing job
characterizations, Ms. Frank received less compensation than Mr. Martin. Id. at ¶ 285.
The Equal Protection Clause “prohibits state and local governments from treating similarly
situated persons differently.” Rector v. City & Cnty. of Denver, 348 F.3d 935, 949 (10th Cir.
2003). To state an actionable Equal Protection claim, Ms. Frank must plausibly allege that, at the
time of the complained of conduct, she was similarly situated to Mr. Martin “in every material
respect” and “no rational basis for the difference in treatment” existed. Rocha v. Zavaras, 443 F.
App’x 316, 319 (10th Cir. 2011); see also Village of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (explaining an equal protection plaintiff’s pleading burden). “[T]he showing that persons
are similarly situated requires some specificity.” Green v. Taylor, No. 2:15-cv-697, 2017 U.S.
Dist. LEXIS 152776, at *26 (M.D. Ala. Sept. 20, 2017) (unpublished) (citing Campbell v. Rainbow
City, Ala., 434 F.3d 1306, 1314 (11th Cir. 2006)). Courts must consider all the factors that account
for the disparity. See Morman v. Campbell Cnty. Mem. Hosp., 632 F. App’x 927, 935 (10th Cir.
2015) (noting relevance of circumstances in which different groups of surgeons became hospital
employees, such as patient base, strength of reputation in the community, and equipment); see also
Green v. Taylor, No. 2:15-cv-697, 2017 U.S. Dist. LEXIS 152776, at **23-24 (M.D. Ala. Sept.
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20, 2017) (unpublished) (finding similarity between plaintiff investigators and comparator group
of investigators because they performed the “same criminal investigatory work, homicide work,
and special inquiries”) .
Ms. Frank’s allegations fail to plausibly allege that she was similarly situated to Mr. Martin
in all material aspects. Mr. Martin is a Financial Analyst, while Ms. Frank is a Crime Analyst.
Complaint, Doc. # 2, at ¶¶ 30, 88. Though both Mr. Martin and Ms. Frank hold “analyst” jobs,
the context and nature of their jobs are very different. Cf. id., at ¶ 175 (alleging that Mr. Martin
was “unqualified to perform [Ms.] Frank’s job responsibilities”). One job concerns financial and
budget matters, while the other job concerns crime data and statistics. Ms. Frank implausibly
alleges a similarity between the two jobs: “Martin and Frank were the only two analyst[s]
supervised by [Deputy Chief] Schiager,” they “were equals on the organizational chart,” and they
“performed substantially the same type of analytical work in their respective areas of expertise.”
Id. at ¶¶ 89-91. Ms. Frank alleges no facts to plausibly demonstrate that financial analysis is
“substantially the same” as crime analysis or that Mr. Martin and Ms. Frank have similar
professional and educational backgrounds. She also does not substantiate her claim that she and
Mr. Martin were “equals on the organizational chart.” These “threadbare recitals” of similarity
are insufficient to withstand Defendants’ motion to dismiss. See Iqbal, 129 S. Ct. at 1949.
Ms. Frank’s Equal Protection claim also fails to the extent it rests on a “class of one” theory.
In Engquist v. Oregon Department of Agriculture, the Supreme Court held that the class-of-one
theory does not apply in the public employment context. 553 U.S. 591, 605 (2008) (noting that a
governmental employer’s differential treatment of employees is the product of “the broad
discretion that typically characterizes the employer-employee relationship”). The Tenth Circuit
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applied this principle in Pignanelli v. Pueblo School District No. 60, 540 F.3d 1213, 1220-22 (10th
Cir. 2008) (finding that Engguist barred the plaintiff’s claim arising from her school board election
loss and job loss). Based on controlling precedent, Ms. Frank’s Equal Protection claim cannot
survive.
B. Entitlement to qualified immunity.
Government officials performing discretionary functions are protected from individual
liability unless their conduct violates “clearly established statutory or constitutional rights of which
a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A
constitutional right is clearly established in one of two ways: (1) by an on-point Supreme Court or
published Tenth Circuit decision; or (2) by “the clearly established weight of authority from other
courts [that has] found the law to be as plaintiff maintains.” Quinn v. Young, 780 F.3d 998, 1005
(10th Cir. 2015). Qualified immunity exists as long as reasonable officials in the same situation
could disagree on the appropriate course of action to follow. Malley v. Briggs, 475 U.S. 335, 336
(1986). Ms. Frank “cannot simply identify a clearly established right in the abstract and allege
that [Defendant Jones has] violated it.” Hilliard v. City and Cnty. of Denver, 930 F.2d 1516, 1518
(10th Cir. 1991). She need not, however, identify a perfectly on-point case. Quinn, 780 F.3d at
1005.
To defeat a qualified immunity defense, Ms. Frank must satisfy two steps: first, establish
that the defendant violated a constitutional or statutory right; and second, demonstrate that the right
was clearly established at the time of the violation. PETA, People for the Ethical Treatment of
Animals v. Rasmussen, 298 F.3d 1198, 1207 (10th Cir. 2002). The court may exercise its discretion
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in determining which prong of the qualified immunity test to address first. Pearson v. Callahan,
555 U.S. 223, 236 (2009).
Under both steps of the analysis, Defendant Jones is entitled to qualified immunity. First,
because Ms. Frank fails to plausibly allege that she and Mr. Martin are similarly situated.
Second, Ms. Frank relies on a clearly established right in the abstract: the right to be free
from gender discrimination in the workplace. This general, abstract right, however, is insufficient
to defeat Defendant Jones’ qualified immunity defense. See Morman, 632 F. App’x at 936-37
(holding that defendants were entitled to qualified immunity liability for gender discrimination
because no law clearly established that employers must hire a medical practice group on the same
terms as an individual medical professional); see also Anderson v. Creighton, 483 U.S. 635, 639
(1987) (stating, “if the test of ‘clearly established law’ were to be [generally] applied . . . it would
bear no relationship to the ‘objective legal reasonableness’ that is the touchstone of [qualified
immunity’”); Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (“[w]e have repeatedly told courts . .
. not to define clearly established law at a high level of generality”). For these reasons, Defendant
Jones is entitled to qualified immunity.
CONCLUSION
Defendants the City of Fort Collins and Terence Jones respectfully request dismissal of the
Age Discrimination claim (Claims 5 and 6) and the Equal Protection claim (Claim 8) against them,
respectively. In sum, Plaintiff Frank’s 42 U.S.C. § 1983 claims are time-barred to the extent they
concern alleged events that occurred more than two years ago; Ms. Frank fails to state an actionable
age discrimination claim against the City under federal or state law; she fails to state an actionable
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Equal Protection claim against Mr. Jones in his individual capacity; and Mr. Jones is entitled to
qualified immunity from personal liability for damages.
Dated this 31st day of January 2019.
Respectfully submitted,
S/ Kathryn A. Starnella
Cathy Havener Greer
Kathryn A. Starnella
Wells, Anderson & Race, LLC
1700 Broadway, Suite 1020
Denver, CO 80290
Telephone: (303) 830-1212
Email: cgreer@warllc.com; kstarnella@warllc.com
Attorneys for Defendants City of Fort Collins and
Terence F. Jones
S/ Jenny Lopez Filkins
Jenny Lopez Filkins
Senior Assistant City Attorney
City of Fort Collins
300 LaPorte Avenue
Fort Collins, CO 80521
Telephone: (970) 221-6520
Email: jlopezfilkins@fcgov.com
Attorney for Defendant City of Fort Collins
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 31, 2019, a true and correct copy of the above and
foregoing DEFENDANTS CITY OF FORT COLLINS’ AND TERENCE JONES’S
MOTION TO PARTIALLY DISMISS THE COMPLAINT (DOC. # 2) was electronically
filed with the Clerk of Court using the CM/ECF system, which will send notification of such filing
to the following email addresses:
Jennifer Robinson, Esq.
Robinson & Associates Law Offices, LLC
7900 E. Union Avenue, Suite 1100
Denver, CO 80237
Email: jrobinson@raemployment.com
Attorneys for Plaintiff
David R. DeMuro, Esq.
Vaughan & DeMuro
720 South Colorado Boulevard
Penthouse, North Tower
Denver, CO 80246
Email: ddemuro@vaughandemuro.com
Attorneys for Defendant Schiager
Sara L. Cook, Esq.
Vaughan & DeMuro
111 South Tejon, Suite 545
Colorado Springs, CO 80903
T: 719-578-5500
Email: scook@vaughandemuro.com
Attorneys for Defendant Schiager
S/ Barbara McCall
Barbara McCall
Email: bmccall@warllc.com
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