Majersky v. Denver Public Schools

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-02956-SKC-KAS
GREGORY MICHAEL MAJERSKY,
Plaintiff,
v.
DENVER PUBLIC SCHOOLS,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant’s Motion to Dismiss Employment
Discrimination Complaint [#20]1 (the “Motion”). Plaintiff filed a Response [#26] in
opposition to the Motion [#20], and Defendant filed a Reply [#27]. The Motion [#20] has
been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. §
636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See [#25]. The
Court has reviewed the briefs, the entire case file, and the applicable law. For the reasons
stated below, the Court RECOMMENDS that the Motion [#20] be GRANTED.
1 “[#20]” is an example of the convention the Court uses to identify the docket number assigned
to a specific paper by the Court’s case management and electronic case filing system (CM/ECF).
This convention is used throughout this Recommendation.
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I. Background2
Plaintiff proceeds in this matter as a pro se litigant.3 According to the Second
Amended Complaint [#16],4 Plaintiff is a male who began working for Defendant Denver
Public Schools on October 8, 2018, as a security administrator in Defendant’s department
of technology services. Colo. Civil Rights Compl. Against DPS (“CCR Complaint”) [#16-
1] at 1. Plaintiff’s former romantic partner, Rebecca Sposato (“Sposato”), is a female who
works as a nurse at the Downtown Denver Expeditionary School (“DDES”), which is a
charter school of Defendant. Statement of Injury and Evidence [#8-1] at 2; CCR Compl.
2 To resolve the Motion [#20], the Court accepts as true all well-pleaded, as opposed to
conclusory, allegations made in Plaintiff’s Second Amended Complaint [#16]. See Shero v. City
of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). However, to the extent that Plaintiff provides additional allegations or possible
new claims in his briefs, the Court notes that a party may not amend his complaint in motion
briefing. See, e.g., Kan. Motorcycle Works USA, LLC v. McCloud, 569 F. Supp. 3d 1112, 1127
(D. Kan. 2021) (stating that “a party may not amend its complaint by way of arguments in a brief”);
Wilson v. Johnson, No. 19-cv-2279-CMA-NRN, 2020 WL 5815915, at *5 (D. Colo. Sept. 30, 2020)
(stating that it is “well established that Plaintiff may not amend his Complaint by adding factual
allegations in response to Defendants’ Motion to Dismiss”).
3 The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S.
519, 520-521 (1972). In doing so, the Court should not be the pro se litigant’s advocate, nor should
the Court “supply additional factual allegations to round out a plaintiff’s complaint or construct a
legal theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997)
(citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Further, pro se litigants are subject
to the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277
(10th Cir. 1994).
4 In the Second Amended Complaint [#16], Plaintiff incorporates the exhibits attached to a prior
complaint. See [#16] at 3; [#8-1] through [#8-21]. D.C.COLO.LCivR 15.1(b) states, “[u]nless
otherwise ordered,” proposed amended or supplemental pleadings “shall not incorporate by
reference any part of the preceding pleading, including exhibits.” (emphasis added). Despite his
pro se status, Plaintiff is required to follow the same procedural rules as parties represented by
counsel. Sears v. Jefferson Cnty. Det. Ctr., No. 20-cv-02293-RM-NYW, 2020 WL 4582721, at *1
(D. Colo. Aug. 10, 2020). In this instance, however, the Court has considered the exhibits
incorporated by reference in, as well as the documents attached to, the Second Amended
Complaint [#16]. Commonwealth Prop. Advocs., LLC v. Mortg. Elec. Registration Sys., Inc., 680
F.3d 1194, 1201 (10th Cir. 2011) (“In evaluating a motion to dismiss, [the court] may consider not
only the complaint, but also the attached exhibits and documents incorporated into the complaint
by reference.”).
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[#16-1] at 1. Plaintiff and Ms. Sposato have a daughter, E.M., who is a student at DDES.
CCR Complaint [#16-1] at 1.
In December 2018, Plaintiff accused Ms. Sposato of abusing E.M. at their home
during breakfast. Statement of Injury and Evidence [#8-1] at 1; Abuse Report DPD [#8-2]
at 11. An investigation by the Denver Police Department concluded that Ms. Sposato had
assaulted E.M., but the Denver District Attorney declined to file charges against her due
to the lack of a likelihood of conviction. Abuse Report DPD [#8-2] at 3, 9. Since that time,
Plaintiff has repeatedly complained to DDES and its principal about Ms. Sposato and her
continued employment. Statement of Injury and Evidence [#8-1] at 1-2; CCR Compl. [#16-
1] at 1-2.
In August 2021, October 2021, and February 2022, Plaintiff complained to the
“U.S. Secret Service” about Defendant’s cybersecurity and data breaches. See Statement
of Injury and Evidence [#8-1]; Email to Secret Service 1 [#8-11]; Email to Secret Service
2 [#8-12]; Email to Secret Service 3 [#8-13]. He also complained to his colleagues about
these issues. Id. One specific issue he complained about to his colleagues was
“Chromebook security,” which he asserted demonstrated a “lack of concern” by the
Manager of the Device Management Team. Statement of Injury and Evidence [#8-1] at 2;
Fear of Chromebook Incompetence [#8-14] at 1.
In January 2023, E.M. was involved in a bullying incident. Statement of Injury and
Evidence [#8-1] at 1-2; CCR Compl. [#16-1] at 1. Plaintiff complained to the principal of
DDES about the incident and about Ms. Sposato, in part accusing DDES of ignoring the
safety of female students and promoting a “boys will be boys” culture. Statement of Injury
and Evidence [#8-1] at 1-2; CCR Compl. [#16-1] at 1. On February 8, 2023, he further
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complained 	to 	Defendant’s 	Human 	Resources 	Department 	about 	Ms. 	Sposato’s
employment, 	specifically 	asserting 	that 	Defendant 	was 	aware 	of 	the 	child 	abuse
allegations against Ms. Sposato but had done nothing about them. Email to DPS about
Rebecca [#8-19]. After his February 8, 2023 complaint, Plaintiff used his position as a
security administrator to “access[ ] the DDES principal’s email and [his] supervisor’s email
to check if the principal was attempting to retaliate against [him]” because he was upset
about the bullying incident. CCR Compl. [#16-1] at 1.
On February 17, 2023, Plaintiff complained to the “U.S. Secret Service” about “very
serious lapses in judgment regarding IT and loT [sic] security that does not just affect
[Defendant] but also the Xcel Energy power grid,” among other alleged IT issues.
Statement of Injury and Evidence [#8-1] at 2; Email to Secret Service 1 [#8-11] at 1. On
the same date, he also expressed concern to other employees of Defendant, particularly
the Network Administrator, about some of his IT security concerns. Email to Secret
Service 1 [#8-11] at 2-4. Plaintiff further complained about Defendant’s initiative that
would provide wireless access to homeless people, which Plaintiff opposed. Statement
of Injury and Evidence [#8-1] at 3; Possible Whistleblowing Event [#8-20]. In early March
2023, Defendant suspended Plaintiff pending an investigation into allegations that he
improperly accessed the email accounts of the DDES principal and his supervisor. CCR
Compl. [#16-1]; LOD and Right to Sue Letter [#16-2]. On March 13, 2023, Defendant
terminated Plaintiff’s employment, purportedly for violating its policies. Id.
As a result of these allegations, Plaintiff asserts 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, Public Law 107-174,
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also known as the No FEAR Act. See [#16] at 2-3. In the present Motion [#20], Defendant
seeks dismissal of all claims for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).
II. Standard of Review
Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed]
to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A
complaint must contain ‘enough facts to state a claim for relief that is plausible on its
face.’” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th
Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “When the
complaint includes ‘well-pleaded allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an entitlement to relief.’” Carraway v.
State Farm Fire & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22,
2023) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
“A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do[,] . . . [n]or does a complaint suffice if it tenders
naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal
quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint
alone is legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC Universal,
Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court’s function on a Rule 12(b)(6)
motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton
v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
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III. Analysis
A. 	Title VII
Plaintiff claims that Defendant violated Title VII by (1) discriminating against him
because of his sex; and (2) impermissibly retaliating against him. Second Am. Compl.
[#16] at 2-3. It is “an unlawful employment practice for an employer . . . to discharge any
individual . . . because of such individual’s race, color, religion, sex, or national origin[.]”
42 U.S.C. § 2000e-2(a)(1). When considering whether a plaintiff has plausibly alleged a
Title VII disparate treatment claim, a court considers the allegations within the context of
the claim’s elements; a court’s plausibility determination does not require a plaintiff to
establish a prima facie case. Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d
1038, 1050 (10th Cir. 2020) (citing Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th
Cir. 2012) (“While the 12(b)(6) standard does not require that [a p]laintiff establish a prima
facie case in her complaint, the elements of [the] alleged cause of action help to determine
whether [a p]laintiff has set forth a plausible claim.”)); see also Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 515 (2002) (holding that “an employment discrimination plaintiff need
not plead a prima facie case of discrimination” to survive a motion to dismiss).
1. 	Sex Discrimination
Defendant argues that Plaintiff’s Title VII sex discrimination claim should be
dismissed because: (1) Plaintiff “has not presented evidence that the [Defendant] is an
unusual employer that discriminates against males,” and (2) Plaintiff “has not presented
evidence that he was terminated under circumstances giving rise to an inference of
discrimination.”5 Motion [#20] at 5-7.
5 Defendant’s arguments that Plaintiff “has not presented evidence” misstates the legal standard
under which Plaintiff’s claims must be evaluated on a Rule 12(b)(6) motion to dismiss. Cf.
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The Court’s critical consideration in Title VII discrimination cases “is whether the
plaintiff 	has 	demonstrated 	that 	the 	adverse 	employment 	action 	occurred 	‘under
circumstances which give rise to an inference of unlawful discrimination.’” Plotke v. White,
405 F.3d 1092, 1100 (10th Cir. 2005) (quoting Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220, 1227 (10th Cir. 2000)). Ordinarily, the elements of a Title VII discrimination
claim require a plaintiff to show “that (1) the plaintiff belongs to some protected class, (2)
the plaintiff was qualified for the position or benefit at issue, (3) the plaintiff suffered an
adverse employment action, and (4) the plaintiff was treated less favorably than others[.]”
Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004) (citing Kendrick, 220
F.3d at 1220).
Reverse discrimination cases, however, require something more. Argo v. Blue
Cross Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006). “[A] plaintiff alleging
reverse discrimination ‘must, in lieu of showing that he belongs to a protected group,
establish background circumstances that support an inference that the defendant is one
of those unusual employers who discriminates against the majority.’” Id. (quoting Notari
v. Denver Water Dep’t, 971 F.2d 585, 589 (10th Cir. 1992)). Alternatively, a plaintiff may
demonstrate “a reasonable inference that but for [the] plaintiff’s status the challenged
decision would not have occurred.” Notari, 971 F.2d at 590.
Swierkiewicz, 534 U.S. at 515 (noting that the Supreme Court “has never indicated that the
requirements for establishing a prima facie case under McDonnell Douglas also apply to the
pleading standard”). Plaintiff need not present any evidence at this stage of the proceeding. As
noted above, the Rule 12(b)(6) standard tests “the sufficiency of the allegations within the four
corners of the complaint after taking those allegations as true.” Mobley, 40 F.3d at 340. The Court
cannot consider “evidence” outside of the complaint and its attached exhibits when adjudicating
a Rule 12(b)(6) unless special circumstances, not implicated here, exist. See Sutton, 173 F.3d at
1236. Nevertheless, the Court has construed Defendant’s statements as arguing that Plaintiff has
not presented allegations sufficient to support his claims.
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Plaintiff alleges that Defendant “openly engages in using gender as a sole basis to
determine who is terminated from their position, regardless of the type and severity of the
offense committed[.]” Second. Am. Compl. [#16] at 3. In support of the alleged gender
discrimination, Plaintiff points to Defendant’s treatment of Ms. Sposato, the mother of
Plaintiff’s daughter. Id.; CCR Compl. [#16-1]. Plaintiff alleges that despite being charged
with child abuse for the assault of their daughter, Defendant “never disciplined or
discharged [Ms. Sposato], despite the greater severity of her actions.” CCR Compl. [#16-
1]; see also Second Am. Compl. [#16] at 3 (“[Ms. Sposato] kept her job and had no
disciplinary action taken against her”).
Plaintiff only points to how one other individual was treated and does not make any
allegations 	about 	Defendant’s 	staffing 	practices 	generally, 	such 	as 	Defendant’s
“workforce composition, hiring practices, or treatment of men more generally.” Lewick v.
Sampler Stores, Inc., No. 21-1251-DDC-ADM, 2022 WL 2966319, at *5-*6 (D. Kan. July
27, 2022). Thus, Plaintiff has failed to sufficiently allege background circumstances
showing that Defendant discriminates against the majority. See id. (stating that, “[i]n
cases where courts have held that a plaintiff adequately had alleged ‘background
circumstances,’ the allegations were supported by facts apprising the court of the
employer’s staffing practices generally”) (citing Reynolds v. Sch. Dist. No. 1, 69 F.3d
1523, 1535 (10th Cir. 1995); Perez v. Unified Govt, No. 10-CV-2107-JAR/GLR, 2011 WL
2038689, at *6 (D. Kan. May 25, 2011)).
Similarly, other than the treatment of Ms. Sposato, Plaintiff has not provided any
allegations to support a reasonable probability that, but for his status as a male, he would
not have been terminated. See Second Am. Compl. [#16]; CCR Compl. [#16-1]. Plaintiff
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appears to assert that Ms. Sposato was a similarly situated female employee who was
treated more favorably. See id. However, the Court disagrees with this assertion because
Plaintiff and Ms. Sposato had different positions and engaged in different conduct, and
Plaintiff does not allege that they reported to the same supervisor. See id.; see also
E.E.O.C. v. PVNF, LLC, 487 F.3d 790, 801 (10th Cir. 2007) (stating that “[i]ndividuals are
considered ‘similarly-situated’ when they deal with the same supervisor, are subjected to
the same standards governing performance evaluation and discipline, and have engaged
in conduct of ‘comparable seriousness’”) (citing McGowan v. City of Eufala, 472 F.3d 736,
745 (10th Cir. 2006)). Further, Plaintiff alleges that (1) he improperly accessed the emails
of his supervisor and the DDES principal, (2) he was “suspended pending an investigation
into [his] actions[,]” and (3) he was terminated because of his violation of Defendant’s
policies. See CCR Compl. [#16-1] at 1-2. Therefore, Plaintiff has failed to adequately
allege that, but for his status as a male, he would not have been terminated.
Accordingly, the Court finds that Plaintiff has failed to plausibly allege a reverse
sex discrimination claim and recommends that Plaintiff’s Title VII sex discrimination claim
be dismissed without prejudice. See, e.g., Knight v. Mooring Cap. Fund, LLC, 749 F.3d
1180, 1190 (10th Cir. 2014) (stating that “pro se parties generally should be given leave
to amend”).
2. 	Retaliation
Defendant argues that Plaintiff’s Title VII retaliation claim should be dismissed
because Plaintiff “has not pled facts sufficient to support a prima facie case of retaliation.”
Motion [#20] at 7-10.
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In addition to forbidding discrimination, Title VII “forbids employers from retaliating
against employees for opposing any activity that is unlawful under Title VII.” Fassbender
v. Correct Care Sols., LLC, 890 F.3d 875, 890 (10th Cir. 2018) (citing 42 U.S.C. § 2003-
e3(a)). A Title VII retaliation claim consists of three elements: “(1) that [the plaintiff]
engaged in protected opposition to discrimination, (2) that a reasonable employee would
have found the challenged action materially adverse, and (3) that a causal connection
existed between the protected activity and the materially adverse action.” Argo, 452 F.3d
at 1202 (internal citations omitted). Further, “these requirements do not change when a
plaintiff’s underlying opposition is to reverse discrimination—for example, discrimination
against men as a class. Title VII makes reverse discrimination unlawful, and employers
have no more freedom to retaliate against those who oppose reverse discrimination than
any other form of discrimination.” Id. However, the absence of a reference to unlawful
discrimination in an employee’s protected opposition “can preclude a retaliation claim
because an employer cannot engage in unlawful retaliation if it does not know that the
employee has opposed or is opposing a violation of Title VII.” Petersen v. Utah Dep’t of
Corr., 301 F.3d 1182, 1188 (10th Cir. 2002). This is because “[a]n employer’s action
against an employee cannot be because of that employee’s protected opposition unless
the employer knows the employee has engaged in protected opposition.” Id. (emphasis
in original) (citations omitted). Therefore, if Defendant did not know that Plaintiff’s
complaints were based on an opposition to sex discrimination, which would mean that
Defendant did not 	know 	Plaintiff 	was engaging 	in protected opposition, Plaintiff’s
retaliation claim is precluded.
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Here, Plaintiff alleges that “Defendant engaged in retaliatory termination of
employment of Plaintiff based solely on hearsay[.]” Second Am. Compl. [#16] at 3. In the
Response [#26], Plaintiff clarifies that he is asserting that Defendant terminated him in
retaliation for complaining “in the course of . . . conducting the responsibilities of his
position,” “citing the failure to terminate[ ] Sposato,” and “using his First Amendment rights
and parental rights regarding the assault on his daughter at DDES[.]” Response [#26] at
6.
However, Plaintiff’s complaints to Defendant about Ms. Sposato, the bullying
incident involving his daughter, and his IT concerns contain no mention that he was
opposing sex discrimination, or any other form of discrimination prohibited by Title VII.
See, e.g., DDES CORA Response [#8-8] at 2-4; Fear of Chromebook Incompetence [#8-
14]; Email Instructing No Response to DPS Data Theft [#8-17]; Email to DPS about
Rebecca [#8-19]. Plaintiff ultimately filed a complaint of discrimination with the Colorado
Civil Rights Division and EEOC. See CCR Compl. [#16-1]. However, this complaint was
filed on May 16, 2023, which is after the asserted retaliation, i.e., his termination, occurred
on March 13, 2023. See id. The Court thus finds that Plaintiff has failed to sufficiently
allege 	that 	Defendant 	was 	aware 	that 	his 	complaints 	were 	in 	opposition 	to 	sex
discrimination. Because Plaintiff has not alleged that Defendant knew he was engaging
in protected opposition, the Court finds that Plaintiff has not plausibly alleged Title VII
retaliation. Accordingly, the Court recommends that Plaintiff’s Title VII retaliation claim
be dismissed without prejudice. See, e.g., Knight, 749 F.3d at 1190.
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B. 	No FEAR Act
Plaintiff also asserts a claim under the No FEAR Act. Second Am. Compl. [#16] at
2-3. Defendant argues that Plaintiff’s No FEAR Act claim should be dismissed for failure
to state a claim because the statute “does not create a private right of action and in any
event only applies to federal employees.” Motion [#20] at 10-11.
The No FEAR Act requires that “Federal agencies be accountable for violations of
antidiscrimination and whistleblower protection laws[,] . . . [and] that each Federal agency
post quarterly on its public Web site, certain statistical data relating to Federal sector
equal employment opportunity complaints filed with such agency[.]” Pub. L. No. 107-174,
116 Stat. 566 (2002). However, the No FEAR Act does not “create a private cause of
action 	or 	substantive 	rights 	for 	litigants 	to 	pursue 	damages 	against 	the 	federal
government, its officers, or employees.” Ash v. Buttigieg, No. CIV-22-371-R, 2022 WL
17225732, at *3 (W.D. Okla. Oct. 24, 2022) (emphasis added), aff’d, No. 22-6195, 2023
WL 6293823 (10th Cir. Sept. 27, 2023), cert. denied, No. 23-7018, 2024 WL 2805790
(U.S. June 3, 2024) (citing Glaude v. United States, 248 F. App’x 175, 177 (Fed. Cir.
2007); Mallard v. Brennan, No. 1:14-CV-00342-JAW, 2015 WL 2092545, at *9 (D. Me.
May 5, 2015)).
Because the No Fear Act provides no private cause of action, Plaintiff does not
have a cause of action under the statute. Accordingly, the Court recommends that
Plaintiff’s No FEAR Act claim be dismissed with prejudice. See, e.g., Serna v. Denver
Police Dep’t, 58 F.4th 1167, 1172 (10th Cir. 2023) (holding that dismissal with prejudice
was appropriate because “an amendment . . . would not change the fact that the statute
does not grant [the plaintiff] a private cause of action”).
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IV. Conclusion
Based on the foregoing,
IT IS HEREBY RECOMMENDED that the Motion [#20] be GRANTED, and that
Plaintiff’s Title VII claims be DISMISSED without prejudice and his No Fear Act claim
be DISMISSED with prejudice.
IT IS FURTHER ORDERED that any party may file objections within 14 days of
service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that,
“within 14 days after being served with a copy of the recommended disposition, a party
may 	serve 	and 	file 	specific 	written 	objections 	to 	the 	proposed 	findings 	and
recommendations. A party may respond to another party’s objections within 14 days after
being served with a copy.” “[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.” United States v. 2121 E. 30th St., 73 F.3d
1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the
district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A]
party who fails to make a timely objection to the magistrate judge’s findings and
recommendations waives appellate review of both factual and legal questions.” Morales-
Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005).
Dated: August 30, 2024 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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