DENVER PUBLIC SCHOOLS, “DPS”, as Employer, JOHN and JANE DOE CORPORATIONS 1 THROUGH 10, and OTHER JOHN DOE ENTITIES 1 THROUGH 10 all whose true names are unknown, Defendants.
Defendant Denver Public Schools (“DPS”) seeks to dismiss Plaintiff Alireza Vazirabadi's claim for violation of the Age Discrimination in Employment Act (“ADEA”). Because Mr. Vazirabadi has made a prima facie showing of age discrimination, I respectfully recommend that the Honorable William J. Martinez deny the motion.
Mr. Vazirabadi is a fifty-five-year-old, Iranian-American citizen residing in Aurora, Colorado. Second Am. Compl. ¶ 1, ECF No. 67. On August 3, 2015, when Mr. Vazirabadi was fifty-two years old, id. ¶ 42, he applied for DPS' process improvement engineer (“PIE”) position. Id. ¶ 19. Mr. Vazirabadi had more than ten years of direct experience. Id.
Mr. Vazirabadi had a phone interview with the DPS hiring manager, who informed him that he was being considered for two identical PIE positions. Id. ¶ 23. He then had a panel interview with the DPS hiring manager and three process improvement team members. Id. ¶ 24. Finally, Mr. Vazirabadi met with DPS' director of enterprise risk management and process improvement. Id. ¶ 26.
On September 23, 2015, DPS informed Mr. Vazirabadi that it had chosen other candidates for the PIE vacancies. Id. ¶ 27. The applicants who received the job offers were a man in his late twenties and a woman in her early thirties. Id. ¶ 15. At the time of hiring, both candidates had five years of experience. Second Am. Compl. Ex. 8.
On October 20, 2015, Mr. Vazirabadi filed a complaint with the Equal Employment Opportunity Commission (“EEOC”). Second Am. Compl. ¶ 9, ECF No. 67. On March 6, 2017, Mr. Vazirabadi received a right to sue letter from the EEOC. Second Am. Compl. Ex. 1, ECF No. 67. Proceeding pro se, Mr. Vazirabadi filed the present case on May 15, 2017. Compl., ECF No. 1.
On May 14, 2018, Mr. Vazirabadi filed a Second Amended Complaint, which asserts Title VII and ADEA claims. Second Am. Compl., ECF No. 67. In his ADEA claim, Mr. Vazirabadi alleges that DPS discriminated against him by hiring two applicants who are under the age of forty and have less experience. Id. ¶¶ 41-46. Mr. Vazirabadi further asserts that DPS deliberately made a false statement to the EEOC by claiming that one of the chosen candidates was over the age of forty when she was actually in her early thirties. Id. ¶ 44.
DPS filed the present Partial Motion to Dismiss on May 29, 2018. Partial Mot. to Dismiss, ECF No. 68. DPS argues that the ADEA claim should be dismissed, because Mr. Vazirabadi fails to plead facts establishing age as a “but-for” cause of DPS' decision not to hire him. Id. at 4-6. Mr. Vazirabadi responds by reiterating his allegation that DPS deliberately made false statements to the EEOC. Resp. to Partial Mot. to Dismiss ¶ 3, ECF No. 71. In its reply brief, DPS asserts that Mr. Vazirabadi failed to refute and thus concedes its but-for causation argument. Reply in Supp. of Partial Mot. to Dismiss 1-3, ECF No. 73. DPS further contends that its EEOC response has no bearing on Mr. Vazirabadi's ADEA claim. Id. at 3-4.
On July 5, 2018, Mr. Vazirabadi filed an opposed Motion for Leave to File a Surreply, ECF No. 77. DPS responded on July 13, 2018. ECF No. 80.