Ross v. Colo. Dep't of Transp.

DAVID C. ROSS, Plaintiff,

v.COLORADO DEPARTMENT OF TRANSPORTATION, Defendant.

Civil Case No. 11-cv-02603-REB-KMT

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date: November 14, 2012

Judge Robert E. Blackburn

ORDER

Blackburn, J.

The matter before is Defendant's Memorandum Brief in Support of Combined Motion To Dismiss and Motion for Summary Judgment [#19],¹ filed June 29, 2012. I grant the motion for summary judgment² and order further briefing on the issues implicated by the motion to dismiss for lack of subject matter jurisdiction

I. JURISDICTION

I have jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 (federal question) & 1367 (pendant state law claims).

II. STANDARD OF REVIEW

Federal courts are courts of limited jurisdiction and thus may only adjudicate claims that the Constitution or Congress have given them authority to hear and determine. Morris v. City of Hobart, 39 F.3d 1105, 1110 (10th Cir. 1994), cert. denied, 115 S.Ct. 1960 (1995); Fritz, 223 F.Supp.2d at 1199 (D. Colo. 2002). A motion alleging immunity from suit implicates the court's subject matter jurisdiction and therefore is analyzed under Fed. R. Civ. P. 12(b)(1). See Neiberger v. Hawkins, 150 F.Supp.2d 1118, 1120 (D. Colo. 2001).

A motion to dismiss under Rule 12(b)(1) may consist of either a facial or a factual attack on the complaint. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). Because defendant's motion presents a facial attack, I must accept the allegations of the complaint as true. Id. Nevertheless, the motion "'must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction.'" Fritz v. Colorado, 223 F.Supp.2d 1197, 1199 (D. Colo. 2002) (quoting Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971)). Plaintiff bears the burden to establish that subject matter jurisdiction exists. Henry v. Office of Thrift Supervision, 43 F.3d 507, 512 (10th Cir. 1994); Fritz, 223 F.Supp.2d at 1199.

Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A dispute is "genuine" if the issue could be resolved in favor of either party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Farthing v. City of Shawnee, 39 F.3d1131, 1135 (10th Cir. 1994). A fact is "material" if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Farthing, 39 F.3d at 1134.

A party who does not have the burden of proof at trial must show the absence of a genuine fact issue. Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied, 115 S.Ct. 1315 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show, by tendering depositions, affidavits, and other competent evidence, that summary judgment is not proper. Id. at 1518. All the evidence must be viewed in the light most favorable to the party opposing the motion. Simms v. Oklahoma ex rel. Department of Mental Health and Substance Abuse Services, 165 F.3d 1321, 1326 (10th Cir.), cert. denied, 120 S.Ct. 53 (1999). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary judgment evidence. Rice v. United States, 166 F.3d 1088, 1092 (10th Cir.), cert. denied, 120 S.Ct. 334 (1999).

III. ANALYSIS

Plaintiff is employed by the Colorado Department of Transportation ("CDOT") as an Administrative Assistant III in the Staff Bridge Unit. Plaintiff's job duties include managing, planning, scheduling, and organizing official functions and special training events for the Unit. Plaintiff, a devout Christian, claims that defendant has discriminated, harassed, and retaliated against him on the basis of his religious faith.

On August 11, 2010, plaintiff was present at a meeting of Staff Bridge Unit Leaders at which the annual employee appreciation luncheon was discussed. Duringthe meeting, Behrooz Far noted that the luncheon was scheduled during the observance of Ramadan and requested that the luncheon be rescheduled so that one of his subordinate employees, Ali Harajli, an observant Muslim, could attend. An alternative date was proposed, and plaintiff's direct supervisor, Staff Bridge Engineer Mark Leonard, approved the change of date and asked plaintiff to notify employees of the change. Although plaintiff objected to the change of date, he did not tell anyone of the reasons for his opposition.

One week later, it came to Mr. Leonard's attention that employees had not been notified of the change of date for the luncheon, and he asked plaintiff to do so as soon as possible. Plaintiff told Mr. Leonard that he would need to hand off responsibilities for advertising the luncheon to another administrative assistant, Lynn Armendariz, because he "would not be at the event, [he] would be out" for "personal reasons" that he "would explain . . . later." (Plf. Resp. App., Exh. B at 91.) Mr. Leonard asked plaintiff to perform his normal responsibilities in the interim and send the email. Plaintiff subsequently sent out an email which stated, in relevant part: "This event is being re-scheduled to Monday, September 13, at the request of Ali, so he may participate." (Def. Motion App., Exh. 5.)

Plaintiff met with Mr. Leonard on August 24 and for the first time specified that rescheduling the luncheon was contrary to his religious beliefs. He asked to be relieved of his responsibilities for coordinating the event. Mr. Leonard agreed, but expressed concern that plaintiff's September 13 email had unfairly singled out Mr. Harajli. He asked plaintiff to consider revising the notice to indicate that it had been Mr. Leonard'sdecision to reschedule the event in order to "honor[] . . . Ramadan[.]" (Plf. Resp. App., Exh. B at 108.) The luncheon subsequently went forward as rescheduled. Plaintiff did not attend.

On September 22, 2010, Mr. Harajli sent an email to plaintiff and Ms. Armendariz, asking them to forward an invitation to Staff Bridge Unit employees to have bagels and cream cheese "[o]n behalf of our fellow employees who are celebrating the end of the Month of fasting (Month of Ramadan) this year[.]" (Def. Motion App. Exh. 6.) Plaintiff refused to forward the invitation. Nevertheless, Mr. Leonard approved the invitation and asked another employee, Mahmood Hasan, to send it out. (See id., Exh. 7.)

The following week, plaintiff met with Mr. Leonard to express his belief that rescheduling the employee appreciation luncheon was "seriously inappropriate" and violated the First Amendment by "establishing that Ramadan was the top religion in Staff Bridge," "this grand holiday that no events could be scheduled during." (Plf. Resp. App., Exh. B at 105-107.) Plaintiff further characterized Mr. Harajli's September 22 email invitation as "proselytizing" and "promoting Islam in the workplace." (Id., Exh. B at 139.) Plaintiff requested an informal resolution of his concerns, and Mr. Leonard provided a written response several weeks later.³

The following September, Mr. Hasan sent an email to Staff Bridge Unit employees indicating that bagels would be available in the cafeteria the following morning to mark the end of Ramadan. Plaintiff responded with his own email:

I am unable to attend the Religious Cultural Celebration marking the End of Ramadan, because my Faith will not allow it, and I also know of other members of Staff Bridge who will not be attending.

Therefore, in keeping with the universal tradition of sharing food as a sign of friendship, I and others have provided some morning snacks in the Coffee/Break room for everyone to enjoy.

(Def. Motion App., Exh. 9 at 2-3.) This prompted Mr. Harajli to respond "[f]eel free not to attend if your faith prohibits you from sharing goodies provided by fellow employees in celebrating their holiday. We do not have any sensitivity regarding participating in occasions celebrated by others." (Id.) After this email string was forwarded by another employee to the Branch Manager for CDOT's Center for Equal Opportunity, she, Mr. Leonard, and others decided that human resources would alert employees that hosting activities with specific religious connotations was considered inappropriate. (Plf. Resp. App., Exhs. F & G.)⁴

On November 16, 2011, Mr. Harajli sent another email to the Staff Bridge Unit inviting them to share bagels and cream cheese "[a]s part of our annual treat to staffBridge." (Def. Motion App., Exh. 11.) Although the email did not mention Eid,⁵ plaintiff responded by asking Mr. Harajli to "[p]lease correct your request to reflect the subject of your attached emails, as the subject listed appears deceptive," and copied Scott McDaniel, Mr. Leonard's supervisor. (Id., Exh. 12.) When plaintiff did not hear back from Mr. McDaniel immediately, he sent a follow-up email, complaining

about Ali's deceptive "meeting," and emails (attached) regarding an [sic] non-specific "annual treat," that appears to be another example of his ongoing promotion of his faith, during working hours, and utilizing a CDOT conference room . . . as well as using broadcast emails. I easily looked up some information on-line, and this event appears to coincide with the second Islamic religious EID [sic] celebration, and as their only "annual" event in the past has been the EID [sic] celebration after Ramadan, this is a new expansion of their promotion of Islamic religious practices. . . .

. . . .

Why is CDOT allowing these obviously deceptive workplace manipulations, in order to indoctrinate non-Muslims into the religious customs of Islam, during scheduled working hours, and tying up CDOT resources with false pretenses?

(Id., Exh. 13 at 3.) When Mr. McDaniel...