O'Connor v. Lafayette City Council

ANDREW J. O'CONNOR, and CLIFF SMEDLEY, Plaintiffs, v. LAFAYETTE CITY COUNCIL, and ALEXANDRA LYNCH, Mayor of Lafayette, Defendants.

Civil Action No. 19-cv-1066-WJM-KLM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 2, 2020

Judge William J. Martínez

ORDER ADOPTING IN PART AND ADOPTING IN PART AS-MODIFIED RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on the November 11, 2019 Recommendation of U.S. Magistrate Judge Kristen L. Mix (the "Recommendation") to grant in part and deny in part Defendants Lafayette City Council (the "Council") and Lafayette Mayor Alexandra Lynch's Motion to Dismiss (the "Motion") (ECF No. 14). (ECF No. 48.) The Recommendation is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). For the reasons that follow, the Recommendation is adopted in part, and adopted in part as modified.

I. BACKGROUND

On April 11, 2019, Plaintiffs Andrew J. O'Connor and Cliff Smedley, both proceeding pro se, filed their Complaint with the Court. (ECF No. 1.) Plaintiffs allege that they sought appointment to a vacant position on the Council, and were not selected for the position because of their race, gender, and age, and because they had previously criticized the Council at public comment and during their previous campaigns for Council membership. O'Connor also alleges that he was not appointed because of his (unidentified) disability. Plaintiffs accordingly bring claims against the Council and Lynch under (1) Title VII, 42 U.S.C. §§ 2000e et seq.; (2) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq.; (3) the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq. (O'Connor only); and (4) the First Amendment.¹

On May 31, 2019, Defendants filed the Motion, seeking to dismiss all of Plaintiffs' claims with prejudice under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 14.) On June 11, 2019, Plaintiffs filed a Response (ECF No. 25), and on June 20, 2019, Defendants filed a Reply (ECF No. 27). The Motion was referred to the Magistrate Judge on June 11, 2019. (ECF No. 24.)

On November 21, 2019, Judge Mix issued her Recommendation. Judge Mix recommended that the Motion be granted in part and denied in part, such that Plaintiff's Title VII and ADEA claims should be dismissed with prejudice, and Plaintiff's ADA and First Amendment claims should be dismissed without prejudice. Judge Mix also recommended that, to the extent it seeks attorneys' fees, the Motion should be denied.

II. STANDARDS OF REVIEW

A. Rule 12(b)(6) Motion to Dismiss

Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss aclaim in a complaint for "failure to state a claim upon which relief can be granted." The 12(b)(6) standard requires the Court to "assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is "whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss "is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal quotation marks omitted). "Thus, 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. (quoting Twombly, 550 U.S. at 556).

B. Review of a Magistrate Judge's Recommendation

When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge "determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to." An objection to a recommendation is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). An objection is sufficiently specific if it "enables the district judge to focus attention on those issues—factual and legal—that are at the heart of the parties' dispute." Id. In conducting its review, "[t]he district court judge mayaccept, reject, or modify the recommendation; receive further evidence; or return the matter to the magistrate judge with instructions." Id.

C. Review of Pro Se Plaintiffs' Pleadings

The Court must construe a pro se plaintiff's pleadings "liberally"—that is, "to a less stringent standard than formal pleadings filed by lawyers." Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009). It is not, however, "the proper function of the district court to assume the role of advocate for the pro se litigant." Id.; see also Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) ("[W]e will not supply additional facts, nor will we construct a legal theory for plaintiff that assumes facts that have not been pleaded.").

III. ANALYSIS

Plaintiffs' factual allegations read as follows:

On 2/12/2019 and 2/24/2019, Plaintiffs applied for a vacancy for a paid position on the Lafayette City Council. The Lafayette City Council consists of 6 white females and 1 non-White male. Plaintiffs fall within a protected class from discrimination as they are White males over the age of forty with Plaintiff O'Connor having a disability. On 2/19/2019, Defendants eliminated Plaintiffs from the interview pool. Plaintiffs were the only 2 candidates eliminated from a candidate pool of 9. On 2/26/2019, Defendants hired a White female. Defendants unlawfully discriminated against Plaintiffs based upon their race, color, sex, disability and age and violated Plaintiffs' rights under the First Amendment because they unlawfully eliminated them from the interview pool because Plaintiffs engaged in protected political speech when they criticized Defendants during public comment at City Council meetings and when Plaintiffs campaigned for City Council.

(ECF No. 1 at 3.)

A. Title VII Claims

Relevant to Title VII, Plaintiffs allege that Defendants failed to hire them to the vacant position on the Council because of their race (white) and gender (male).

Title VII protects employees and applicants for employment from discrimination based on certain protected characteristics. See 42 U.S.C. § 2000e et seq. However, the statute provides that the term "employee" does not include, among other things, "an appointee on the policymaking level." Id. § 2000e(f); see also Crumpacker v. Kan., Dep't of Human Res., 474 F.3d 747, 749 (10th Cir. 2007) ("Title VII does not protect an appointee on the policy making level in state or local government."). Defendants argue that, because Plaintiffs were seeking appointment to a policymaking position in local government, they are not afforded the protections of Title VII. Judge Mix agreed, and recommended that Plaintiffs' Title VII claims be dismissed with prejudice. In light of Plaintiffs' pro se status, the Court considers Plaintiffs' Objections as to this part of the Recommendation to be sufficiently specific to trigger de novo review. (See ECF No. 65 at 10-11.)

It is not clear from the face of the Complaint that Council members are policymakers for Lafayette. However, Defendants argue that the Lafayette City Charter (the "Charter") establishes that Council members are policymakers, and that the Court may properly consider the Charter in ruling on the Motion. (ECF No. 14 at 8 n.5.)

The Court may take judicial notice of city charters, Melton v. City of Okla. City, 879 F.2d 706, 724 n.25 (10th Cir. 1989), and matters subject to judicial notice may be considered in ruling on a Rule 12(b)(6) motion to dismiss, Tellabs, Inc. v. Makor Issues& Rights, Ltd., 551 U.S. 308, 322 (2007); see also Moore v. City of Tulsa, 55 F. Supp. 3d 1337, 1342-43 (N.D. Okla. 2014) (taking judicial notice of a city charter in ruling on a Rule 12(b)(6) motion to dismiss). Accordingly, the Court will consider the Charter in ruling on Defendants' Motion.

Defendants point to section 4.1 of the Charter in support of their argument that Council members are policymakers. Section 4.1 provides:

The City Council shall consist of seven (7) members, one of whom shall serve as Mayor. The Council shall constitute the legislative and governing body of the city and shall have power and authority except as otherwise provided in this Charter or by the Constitution of the State of Colorado, to exercise all powers conferred upon or possessed by the city, and shall have the power and authority to adopt such laws, ordinances and resolutions as it shall deem proper in the exercise thereof.

Lafayette City Charter § 4.1 (emphases added).

Given that under section 4.1 of the Charter Council members "constitute the legislative and governing body of the city," id., it cannot seriously be contested that Council members occupy policymaking roles in the city. See Gregory v. Ashcroft, 501 U.S. 452, 467 (1991).

The Tenth Circuit has made clear, however, that to constitute an "appointee on the policy making level," a person must be "appointed by an elected official to a policy making position." Anderson v. Albuquerque, 690 F.2d 796, 800 (10th Cir. 1982) (emphasis added). Pertinent to this issue is section 3.2 of the Charter, which provides, "The elective officers of the city shall be seven (7) Councilors, all of whom shall be nominated and elected from the city at large." Lafayette City Charter § 3.2. Andsection 5.7(a) of the Charter (titled "Filling vacancies in elective offices") provides: "Any vacancy which occurs in the Council more than ninety (90) days before the next regular city election shall be filled within thirty (30) days by a majority vote of the remaining members of the Council, ...