Vazirabadi v. Denver Public Schools ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 23, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
ALIREZA VAZIRABADI,
Plaintiff - Appellant,
v. No. 19-1245
(D.C. No. 1:17-CV-01194-WJM-SKC)
DENVER PUBLIC SCHOOLS; JOHN (D. Colo.)
AND JANE DOES 1 THROUGH 10;
JOHN AND JANE DOE
CORPORATIONS 1 THROUGH 10;
OTHER JOHN AND JANE DOE
ENTITIES 1 THROUGH 10, all whose
true names are unknown,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, EBEL, and HARTZ, Circuit Judges.
_________________________________
Alireza Vazirabadi, appearing pro se,1 brought this employment discrimination
action against Denver Public Schools (“DPS”), alleging that he was not hired for a
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Because Vazirabadi appears pro se, we construe his filings liberally, but we
do not “assume the role of advocate” for Vazirabadi. Garrett v. Selby Connor
position as a Process Improvement Engineer (“PIE”) because of his national origin
and age. Vazirabadi appeals the district court’s order granting DPS’s Motion for
Summary Judgment. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Vazirabadi is an Iranian American man in his mid-fifties. In 2015, Vazirabadi
saw a job posting online—DPS was seeking applicants for two Process Improvement
Engineer (“PIE”) positions. A qualified candidate needed an engineering degree and
at least five years of relevant experience. DPS also sought candidates with strong
collaborative leadership skills. Vazirabadi has a bachelor’s degree in Industrial
Engineering and, as of 2015, he had over 20 years of relevant experience. He applied
for the position through DPS’s online job application system. In 2015, the
application asked candidates if they were bilingual and, if so, in what languages (the
“bilingual question”). Vazirabadi indicated that he is bilingual in Farsi/Persian.
Vazirabadi did not report his bilingualism on any other materials or at any other stage
in the interview process, nor was he asked about this at any time. Vazirabadi did not
report his age or national origin at any point in the interview process.
Vazirabadi was selected for a phone interview. He and four other candidates
were then invited to undergo in-person interviews. The first component of the in-
person interview process was a panel interview with the hiring manager and three
incumbent PIEs. The panel asked each applicant to facilitate a group discussion
Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991)).
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about team-building activities in Denver. Vazirabadi’s account of his performance
differs from his interviewers’ account. Vazirabadi asserts that he facilitated a
collaborative discussion and that he maintained “excellent interactions and chemistry
with all the panel members, for the entire 60 minute interview.” (Doc. 117 at 13) At
the end of the interview, one of the interviewers asked Vazirabadi if he prefers to be
called “Alireza” or “Ali.” (Id.) Vazirabadi took this a sign that he would certainly
be offered the position. In contrast, DPS maintains that Vazirabadi dominated the
conversation and failed to engage all members of the panel in the conversation.
After DPS had interviewed all five candidates, the interviewers met to
compare notes and rank the candidates on a scale of one through five, one being the
most desirable. The ranking order was unanimous; each interviewer agreed that
Vazirabadi was the least desirable candidate and he was therefore ranked fifth. The
hiring manager created a spreadsheet to reflect that ranking and included a comment
about Vazirabadi: “Good experience, not a good team fit. Not sure if he would work
well on a team.” (Doc. 116-1 at 30) DPS extended offers to the candidates ranked
first and second, and both candidates accepted. The hiring manager then emailed
Vazirabadi to inform him that DPS had decided to hire other candidates.
Vazirabadi alleged that the email left him feeling “emotionally and physically
sick, numb, humiliated and rejected” because he was “100% sure” he had “perfect”
qualifications and had “performed great” in his interview. (Doc. 67 at 8, ¶ 27)
Vazirabadi filed a charge of discrimination with the EEOC and subsequently
received a Notice of Right to Sue. Vazirabadi filed a complaint against DPS in May
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2017. Vazirabadi amended his complaint once as a matter of course, and he later
received leave from the court to file a second amended complaint. In his operative
Second Amended Complaint, Vazirabadi asserts that DPS engaged in national origin
discrimination in violation of Title VII of the Civil Rights of 1964 (“Title VII”), 42
U.S.C. §§ 2000e et seq., and age discrimination in violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621 et seq. In May
2018, the magistrate judge held a scheduling conference and set deadlines to guide
the proceedings. The magistrate judge set a deadline of June 30, 2018 as the last day
to add parties or amend pleadings.
In September 2018, Vazirabadi served a subpoena to produce on non-party
Infor Global Solutions (“Infor”). Infor is a software company that licenses online job
application software to DPS. Vazirabadi sought information from Infor about its
development of the bilingual question for DPS’s job application software. Infor
refused to produce the requested information, and Vazirabadi filed a motion to
compel. The magistrate judge denied the motion, concluding that Vazirabadi had
failed to demonstrate how the information he sought from Infor was relevant to his
claims against DPS. Vazirabadi filed an objection to the magistrate judge’s ruling.
On November 30, 2018—five months after the June 30, 2018 deadline for
amending pleadings—Vazirabadi filed a motion to amend his Second Amended
Complaint. On February 8, 2019, while the November 30, 2018 motion was still
pending before the court, Vazirabadi filed another motion to amend his Second
Amended Complaint. Through those motions, Vazirabadi sought to add claims for
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conspiracy between DPS and Infor. The magistrate judge recommended denying
those motions, and Vazirabadi filed an objection to that recommendation.
On January 14, 2019, DPS moved for summary judgment, and the magistrate
judge recommended granting that motion. Vazirabadi filed an objection to that
recommendation.
On June 25, 2019, the district court issued its Order on Pending
Recommendations and Motions. First, the court adopted the magistrate judge’s
recommendation regarding Vazirabadi’s motions to amend, overruled Vazirabadi’s
objection to that recommendation, and denied Vazirabadi’s November 30, 2018
Motion to Amend and his February 8, 2019 Motion to Amend. Second, the court
adopted the magistrate judge’s recommendation regarding DPS’s Motion for
Summary Judgment, overruled Vazirabadi’s objection to that recommendation, and
granted DPS’s Motion for Summary Judgment. Third, the court overruled as moot
Vazirabadi’s objection to the magistrate judge’s denial of Vazirabadi’s motion to
compel. Vazirabadi appeals each of those rulings.
II. DISCUSSION
A. The district court did not err in denying Vazirabadi’s motions to amend.
We review the district court’s ruling on a motion for leave to file an amended
complaint for an abuse of discretion. Zisumbo v. Ogden Reg’l Med. Ctr., 801 F.3d
1185, 1195 (10th Cir. 2015). Rule 15(a)(2) provides that after the initial deadline for
amendment has passed, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court
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should freely give leave when justice so requires.” Id. However, “[a]fter a
scheduling order deadline, a party seeking leave to amend must demonstrate (1) good
cause for seeking modification under Fed. R. Civ. P. 16(b)(4) and (2) satisfaction of
the Rule 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat’l Bank Assoc., 771
F.3d 1230, 1240 (10th Cir. 2014). Rule 16(b)(4) provides that “[a] schedule may be
modified only for good cause and with the judge’s consent.” “In practice, this
standard requires the movant to show the ‘scheduling deadlines cannot be met despite
[the movant’s] diligent efforts.’” Gorsuch, 771 F.3d at 1240 (quoting Pumpco, Inc.
v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). “Rule 16’s good cause
requirement may be satisfied, for example, if a plaintiff learns new information
through discovery or if the underlying law has changed.” Id. “If the plaintiff knew
of the underlying conduct but simply failed to raise [applicable] claims, however, the
claims are barred.” Id. Courts are “afforded wide discretion” in their application of
the good cause standard under Rule 16. Bylin v. Billings, 568 F.3d 1224, 1231 (10th
Cir. 2009).
Vazirabadi failed to show that the June 30, 2018 deadline could not have been
met despite his diligent efforts. See Gorsuch, 771 F.3d at 1240. In his November 30,
2018 Motion to Amend, Vazirabadi sought to add Infor and Infor’s CEO as parties to
this action. Vazirabadi learned about Infor through discovery on August 16, 2018—
106 days before he filed his first motion to amend. Vazirabadi does not offer any
explanation for that delay. Vazirabadi knew of Infor’s involvement but failed to raise
claims against them for more than 100 days. Similarly, in his February 8, 2019
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Motion to Amend, Vazirabadi sought to add as parties two DPS employees who were
involved in interviewing and making hiring decisions for the two PIE positions.
Vazirabadi knew of those employees and their involvement in interviewing and
making hiring decisions from the outset of the case. Yet, after filing his initial
complaint, he waited 233 days—more than eight months—before attempting to add
those employees as parties to this action. Again, Vazirabadi offers no justification
for that delay. Vazirabadi did not satisfy Rule 16’s good cause standard. Therefore,
the district court acted within its discretion in denying Vazirabadi’s motions to
amend, both of which were filed long after the June 30, 2018 scheduling deadline.
B. The district court did not err in granting DPS’s Motion for Summary Judgment.
“We review the district court’s summary-judgment order de novo, applying the
same standard that the district court is to apply.” Singh v. Cordle, 936 F.3d 1022,
1037 (10th Cir. 2019). “Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material fact and one party is
entitled to judgment as a matter of law.” Jiron v. City of Lakewood, 392 F.3d 410,
414 (10th Cir. 2004) (citing Fed. R. Civ. P. 56(c)). “Although we construe the
evidence in the light most favorable to the non-movant, to avoid summary judgment,
a nonmovant must provide significantly probative evidence that would support a
verdict in [his or her] favor.” Jaramillo v. Adams Cty. Sch. Dist. 14, 680 F.3d 1267,
1268–69 (10th Cir. 2012).
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Vazirabadi claims that DPS discriminated against him based on his national
origin and age, in violation of Title VII and the ADEA. Because Vazirabadi offers
no direct evidence of discrimination, we apply the burden shifting framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonell
Douglas framework, “the plaintiff has the initial burden of establishing a prima facie
case of discrimination.” Singh, 936 F.3d at 1037. “In general, ‘[t]he critical prima
facie inquiry . . . is whether the plaintiff has demonstrated that the adverse
employment action . . . occurred under circumstances which give rise to an inference
of unlawful discrimination.’” Id. (quoting Kendrick v. Penske Transp. Servs., Inc.,
220 F.3d 1220, 1227 (10th Cir. 2000)). “If the plaintiff makes this showing, the
burden shifts to the employer to assert ‘a legitimate nondiscriminatory reason for its
actions.’” Id. (quoting Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 627 (10th
Cir. 2012)). If the employer meets that burden, “the burden shifts back to the
plaintiff to introduce evidence that the stated nondiscriminatory reason is merely a
pretext.” Id. (quoting Daniels, 701 F.3d at 627).
To establish a genuine issue of material fact as to pretext, a plaintiff must
demonstrate that the “proffered non-discriminatory reason is unworthy of belief.”
Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1134 (10th Cir.
2010) (quoting Pinkerton v. Colo Dep’t of Transp., 563 F.3d 1052, 1065 (10th Cir.
2009)). A plaintiff “can meet this standard by producing evidence of ‘such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
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could rationally find them unworthy of credence and hence infer that the employer
did not act for the asserted non-discriminatory reasons.’” Id. (quoting Pinkerton, 563
F.3d at 1065).
The district court concluded that even if Vazirabadi had made a prima facie
case of national origin or age discrimination, DPS satisfied its burden of providing
legitimate, non-discriminatory reasons for not hiring Vazirabadi, and Vazirabadi
failed to make a showing of pretext. We agree.
DPS argues that it chose not to hire Vazirabadi because he performed poorly in
his interviews. The evidence in the record supports DPS’s position. Regarding
Vazirabadi’s performance in his panel interview, the hiring manager stated that
Vazirabadi “performed poorly” because, rather than facilitating a group discussion,
“he dictated it.” (Doc. 116-1 at 2–3) The hiring manager also observed that
Vazirabadi “was unable to make all the Process Improvement team members feel he
was listening to their ideas.” (Id.) One of the incumbent PIEs offered a similar
account, stating that Vazirabadi “dominated the discussion rather than facilitate it.”
(Doc. 116-5 at 1) A supervisor described her impression that Vazirabadi “would not
be able to work collaboratively and consultatively in a team role.” (Doc. 116-2 at 2)
In contrast, interviewers described the two candidates who were ultimately hired for
the positions as demonstrating strong collaborative and listening skills. Based on his
performance, all interviewers ranked Vazirabadi fifth out of five candidates. In
documenting Vazirabadi’s rank, the hiring manager commented: “Good experience,
not a good team fit. Not sure if he would work well on a team.” (Doc. 116-1 at 30)
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Moreover, the hiring manager stated in an affidavit that, at the time she made
her hiring decision, she was not aware that applicants were required to complete an
online job application, and she was therefore not aware of any applicant’s response to
the bilingual question. She further stated that the age, national origin, and language
proficiency of the candidates had no bearing on her hiring decisions.
Vazirabadi does not offer any evidence to show that DPS’s proffered non-
discriminatory reasons for choosing not to hire him are unworthy of belief. See
Reinhardt, 595 F.3d at 1134. He offers only his own impression that he maintained
“excellent interactions and chemistry with all the panel members, for the entire 60
minute interview.” (Doc. 117 at 13) Vazirabadi does not present any evidence of
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” that
would cast doubt on DPS’s assertion that it chose not hire Vazirabadi because he
performed poorly in his interviews and had gaps in his employment history.
Reinhardt, 595 F.3d at 1134 (quoting Pinkerton, 563 F.3d at 1065). Vazirabadi has
therefore failed to meet his burden under the McDonell Douglas framework, and DPS
is entitled to summary judgment.2
2
In his brief, Vazirabadi raises four specific arguments to challenge the
summary judgment ruling: (1) DPS discarded the panel interview notes and thus an
adverse inference should be applied against DPS to remedy the spoliation; (2) DPS
interviewers submitted false affidavits, and the court failed to weigh the evidence in
favor of Vazirabadi; (3) DPS’s bilingual question had a disparate impact on members
of a protected class; and (4) Vazirabadi, as the fifth ranked candidate, was actually
the most desirable candidate. We have carefully considered each of these arguments
and find them to be unpersuasive. Accordingly, we do not discuss them further.
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C. The district court did not err in overruling as moot Vazirabadi’s objection
regarding his Motion to Compel.
We review discovery rulings, including a ruling that a motion is moot, for an
abuse of discretion. Carr v. Castle, 337 F.3d 1221, 1232 (10th Cir. 2003). After the
magistrate judge denied Vazirabadi’s motion to compel discovery from Infor,
Vazirabadi filed an objection to the magistrate judge’s ruling. That objection was
pending before the district court when DPS moved for summary judgment. “There is
no requirement in Rule 56 . . . that summary judgment not be entered until discovery
is complete.” Marquez v. Cable One, Inc., 463 F.3d 1118, 1121 (10th Cir. 2006)
(quoting Pub. Serv. Co. of Colo. v. Cont’l Cas. Co., 26 F.3d 1508, 1518 (10th Cir.
1994)). However, Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts essential to justify its
opposition,” the court may defer its consideration of the motion for summary
judgment or allow time to take discovery. Fed. R. Civ. P. 56(d).
Vazirabadi did not file a Rule 56(d) affidavit demonstrating why he could not
respond to DPS’s Motion for Summary Judgment without obtaining discovery from
Infor. Moreover, even on appeal, Vazirabadi has failed to explain how documents
obtained from Infor could raise a triable issue of fact as to his claims against DPS.
Therefore, the district court was within its discretion in overruling Vazirabadi’s
objection as moot.
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III. CONCLUSION
We AFFIRM the district court’s rulings in its Order on Pending
Recommendations and Motions.
Entered for the Court
David M. Ebel
Circuit Judge
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