Majersky v. Denver Public Schools

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:23-cv-02956-SKC-KAS
GREGORY MICHAEL MAJERSKY,
Plaintiff,
v.
DENVER PUBLIC SCHOOLS,
Defendant.
ORDER
This case arises from Plaintiff Gregory Michael Majersky’s allegations that
Defendant Denver Public Schools discriminated and retaliated against him in
violation of federal law. Dkt. 16. Plaintiff is a male who worked for Defendant as a
security administrator in Defendant’s department of technology services. Dkt. 28 at
2. Plaintiff’s former romantic partner and the mother of his child, Rebecca Sposato,
works as a nurse in the Downtown Denver Expeditionary School (DDES), which is
one of Defendant’s charter schools. Id.
In December 2018, Plaintiff accused Ms. Sposato of abusing their daughter at
their home during breakfast. Id. at 3. Although the Denver police concluded Ms.
Sposato had assaulted the child, the district attorney declined to bring charges. Id.
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Since that time, Plaintiff has repeatedly complained to DDES and its principal about
Ms. Sposato and her continued employment. Id.
In January 2023, Plaintiff’s daughter was involved in a bullying incident. Id.
Plaintiff complained to the DDES principal about the incident and about Ms. Sposato.
Id. On February 8, 2023, Plaintiff further complained about Ms. Sposato and her
continued employment to Defendant’s Human Resources Department. Id. at 3-4.
After this, Plaintiff used his position as a security administrator to access the DDES
principal’s email and his supervisor’s email to see if the principal was going to
retaliate against him. Id. at 4.
In addition, starting in August 2021, Plaintiff sent several complaints to the
“U.S. 	Secret 	Service” 	about 	Defendant’s 	cybersecurity, 	data 	breaches, 	and
Defendant’s initiative to provide internet access to people experiencing homelessness.
Id. He also complained to his colleagues about these issues. Id. at 3-4.
In early March 2023, Defendant suspended Plaintiff pending an investigation
into allegations he improperly accessed email accounts belonging to the DDES
principal and his supervisor. Id. at 4. Defendant terminated Plaintiff’s employment
on March 13, 2023, purportedly for violating its policies. Id. As a result of these
allegations, Plaintiff initiated this case asserting three claims: (1) Title VII sex
discrimination; (2) Title VII retaliation; and (3) retaliation in violation of the
Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002
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(No FEAR Act). See Dkt. 16. Defendant filed a Motion to Dismiss seeking dismissal
of all claims pursuant to Fed. R. Civ. P. 12(b)(6). Dkt. 20.
The Court referred the Motion to Magistrate Judge Kathryn A. Starnella, and
on August 30, 2024, Judge Starnella issued her Recommendation that this case be
dismissed in its entirety. Dkt. 28. On September 4, 2024, Plaintiff filed objections
(Dkt. 32) but before Defendant had an opportunity to respond, Plaintiff filed modified
objections (Dkt. 39) on September 10, 2024. Defendant responded to both sets of
objections. Dkt. 41. The Court, however, only addresses Plaintiff’s modified objections
because, for reasons that are not entirely clear, Plaintiff drafted his initial objections
without having read Judge Starnella’s opinion. To be sure, all the objections in
Plaintiff’s first filing are directed at Defendant’s arguments and actions and do not
specify any purported errors in Judge Starnella’s reasoning. See Dkt. 32. Thus, the
Court considers Plaintiff’s second filing to be his operative objections.
Having reviewed the Amended Complaint, Motion, Recommendation, and
relevant briefing on these matters, the Court agrees with Judge Starnella’s thorough
and well-reasoned conclusion that Plaintiff has failed to articulate any claims for
relief. Consequently, the Court AFFIRMS and ADOPTS the Recommendation.
LEGAL STANDARDS
1. 	Review of a Magistrate Judge’s Recommendation
“‘The filing of objections to a [magistrate judge’s] report enables the district
judge to focus attention on those issues—factual and legal—that are at the heart of
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the parties’ dispute,’ and gives the district court an opportunity ‘to correct any errors
immediately.’’’ United States v. One Parcel of Real Property, 73 F.3d 1057, 1059 (10th
Cir. 1996) (cleaned up; citations omitted). “[O]nly an objection that is sufficiently
specific to focus the district court’s attention on the factual and legal issues that are
truly in dispute will advance the policies behind the [Magistrates] Act . . . ,” including
judicial efficiency. Id. at 1060. “[A]llowing parties to litigate fully their case before
the magistrate [judge] and, if unsuccessful, to change their strategy and present a
different theory to the district court would frustrate the purpose of the Magistrates
Act.” Cole v. New Mexico, 58 F. App’x 825, 829 (10th Cir. 2003) (unpublished) (citation
omitted).
The Court must “make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection is made.” 28
U.S.C. § 636(b)(1)(C). “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review.” One Parcel, 73 F.3d at 1060; see
also Fed. R. Civ. P. 72(b)(2). “Objections disputing the correctness of the magistrate
judge’s recommendation, but failing to specify the findings believed to be in error are
too general” and may result in a waiver of the objections. Kazarinoff v. Wilson, No.
22-cv-02385-PAB-SKC, 2024 WL 98385, at *2 (D. Colo. Jan. 9, 2024) (quoting
Stamtec, Inc. v. Anson, 296 F. App’x 518, 520 (6th Cir. 2008) (unpublished)). And
“issues 	raised 	for 	the 	first 	time 	in 	objections 	to 	the 	magistrate 	judge’s
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recommendation are deemed waived.” ClearOne Commc’ns, Inc. v. Biamp Sys., 653
F.3d 1163, 1185 (10th Cir. 2011) (cleaned up) (quoting Marshall v. Chater, 75 F.3d
1421, 1426-27 (10th Cir. 1996)).
When no party files an objection, the district court may review a magistrate
judge’s recommendation under any standard it deems fit. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985).
(“It does not appear that Congress intended to require district court review of a
[magistrate judge’s] factual or legal conclusions, under a de novo or any other
standard, when neither party objects to those findings.”). In the absence of specific or
any objections, the district court reviews the recommendation to satisfy itself that
there is “no clear error on the face of the record.” Fed. R. Civ. P. 72(b), 1983 Advisory
Committee Notes. This standard of review is something less than a “clearly erroneous
or contrary to law” standard, which in turn is less than a de novo review. See Fed. R.
Civ. P. 72(a) and (b).
2. 	Treatment of a Pro Se Plaintiff’s Pleadings
A pro se litigant’s pleadings are construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers. Garrett v. Selby Connor Maddux
& Janer, 425 F.3d 836, 840 (10th Cir. 2005). But a pro se litigant must follow the
same rules of procedure that govern other litigants, and the Court does not supply
additional factual allegations to round out a complaint or construct legal theories on
behalf of a pro se litigant. Smith v. United States, 561 F.3d 1090, 1096 (10th Cir.
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2009). The Court may excuse a pro se plaintiff’s failure to cite proper legal authority,
confusion about various legal theories, poor syntax and sentence construction, or
unfamiliarity with pleading requirements, but it does not act as the pro se plaintiff’s
advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
ANALYSIS
Plaintiff makes specific objections challenging Judge Starnella’s conclusions
regarding his Title VII sex discrimination claim. See Dkt. 39. He does not make any
objections to Judge Starnella’s analysis or conclusions regarding his Title VII
retaliation claim. And with respect to his claim under the No FEAR Act, Plaintiff’s
objection amounts to little more than a disagreement with the correctness of Judge
Starnella’s analysis, which is too general. As a result, Plaintiff has waived de novo
review of these parts of the Recommendation and the Court reviews them only for
clear error. Thomas, 474 U.S. at 148-53.
Judge Starnella’s Recommendation regarding Plaintiff’s Title VII retaliation
claim and his No FEAR Act claim is detailed and thorough and contains no clear error
on the face of the record. It construes Plaintiff’s claims liberally and correctly applies
the controlling law. Consequently, the Court affirms and adopts this portion of Judge
Starnella’s analysis without further comment.1
1 Plaintiff also states Judge Starnella’s use of the term “reverse sex discrimination”
demonstrates 	bias. 	Dkt. 	39 	at 	2. 	It 	does 	nothing 	of 	the 	sort. 	“Reverse 	sex
discrimination” is the recognized and accepted legal terminology used to describe a
claim of discrimination based on sex when, as here, the plaintiff is male. See e.g.,
McGarry v. Bd. of Cty. Comm’rs of Cty. of Pitkin, 175 F.3d 1193, 1199 (10th Cir. 1999).
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Turning to the specific objections, Plaintiff first objects to the magistrate
judge’s conclusion that Plaintiff and Ms. Sposato are not similarly situated such that
her more favorable treatment could constitute evidence of discrimination. Plaintiff
argues that he and Ms. Sposato work for the same organization and are subject to the
same ethics codes and rules of conduct. Dkt. 39 at 1. As Judge Starnella aptly
discussed, however, the law requires more.
While 	a 	plaintiff 	may 	establish 	an 	inference 	of 	discrimination 	by
demonstrating the employer treated the plaintiff differently than a similarly situated
employee, 	the 	plaintiff 	must 	also 	establish 	the 	comparator 	“shares 	the 	same
supervisor, is subject to the same standards governing performance evaluation and
discipline, 	and has 	similar relevant 	employment 	circumstances, 	such 	as 	work
history.” Throupe v. Univ. of Denver, 988 F.3d 1243, 1252 (10th Cir. 2021). Here, Ms.
Sposato worked as a school nurse under a different supervisor and is not alleged to
have engaged in the same type of conduct as Plaintiff. Thus, Judge Starnella correctly
concluded Ms. Sposato is not an appropriate comparator for purposes of establishing
a Title VII sex discrimination claim. Plaintiff’s objection is overruled.
In 	his 	second 	objection, 	Plaintiff 	seemingly 	concedes 	Judge 	Starnella’s
conclusion that he failed to sufficiently allege background circumstances showing
Defendant discriminates against the majority. Instead of challenging this finding, he
attempts to amend his pleadings with a number of civil rights complaints filed
against Defendant. These efforts are unavailing. First, Plaintiff may not amend his
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pleadings in such a manner. See Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir.
2001) (“[A] court may not consider allegations or theories [in a response brief] that
are inconsistent with those pleaded in the complaint.”). And even if he could, these
new allegations would not salvage Plaintiff’s claim because there are no underlying
details regarding the purported incidents of discrimination. To be sure, Plaintiff
admits he does not know which, if any, of these cases involve allegations of sex
discrimination. Dkt. 39 at 3. Thus, the Court overrules this objection.
* 	* 	*
For the reasons shared above, the Court OVERRULES Plaintiff’s objections to
the Recommendation. The Court AFFIRMS and ADOPTS Magistrate Judge Kathryn
A. Starnella’s Recommendation and ORDERS:
1. 	Defendant’s Motion to Dismiss (Dkt. 20) is GRANTED.
2. 	Plaintiff’s Title VII claims are dismissed without prejudice for failure to
state a claim.
3. 	Plaintiff’s claim pursuant to the No FEAR Act is dismissed with prejudice
because there is no private cause of action under the statute.
4. 	The Clerk of the Court shall enter judgment for Defendant on Plaintiff’s
claims and shall terminate this action.
5. 	Defendant shall be entitled to an award of costs.
DATED: March 17, 2025.
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BY THE COURT:
_______________________________
S. Kato Crews
United States District Judge
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