Opinion
Civil Action 23-cv-01713-SKC-STV
05-15-2024
BRITTNEY EGUAKUN, Plaintiff, v. GUSTO, INC., Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Scott T. Varholak United States Magistrate Judge
This civil action is before the Court on Defendant's Motion to Dismiss Plaintiff's Complaint [#23] (the “Motion”). The Motion has been referred to this Court. [#26] This Court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED, as set forth below.
The facts are drawn from the allegations in Plaintiff's Complaint [##1; 1-1], which must be taken as true when considering a motion to dismiss. Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). The Court also considers the Charge of Discrimination filed with the Colorado Civil Rights Division and the U.S. Equal Employment Opportunity Commission (the “EEOC”) [#4], and the EEOC Notice of Right to Sue [#1-4], as these documents were attached to Plaintiff's Complaint and incorporated by reference. [#1 at 7]; see Commonwealth Prop. Advocs., LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1201 (10th Cir. 2011) (“In evaluating a motion to dismiss, [a court] may consider not only the complaint, but also the attached exhibits and documents incorporated into the complaint by reference.”). The Court does not consider any additional factual allegations raised by Plaintiff in briefing. See In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d 1178, 1203 (D. Colo. 2004) (disregarding additional factual claims asserted in briefing on a motion to dismiss, explaining that “plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss”).
Plaintiff, a black female, was hired by Defendant in August 2018 on the “Outbound Sales team.” [#1-1 at 1, 2] After about five months, Plaintiff was given the responsibility of onboarding and training new hires, in addition to her regular role.[Id. at 1] Plaintiff trained at least ten new co-workers who were white males and females, and who were promoted ahead of Plaintiff. [Id.] While on the Outbound Sales team, Plaintiff applied for promotions or “opportunit[ies] . . . to grow [her] career on another team.” [Id.] Plaintiff was passed over each time. [Id.] When Plaintiff asked for feedback in order to understand how she could be considered in the future, Plaintiff received vague or misleading feedback such as: “[Y]ou love Gusto too much; you need to love sales more.” [Id.] For one such position, Plaintiff spoke with the Head of Sales, Kristen Groher. [Id.] Ms. Groher “didn't ask [Plaintiff] for [her] credentials but rather guessed that [Plaintiff] wasn't qualified.” [Id.] Ms. Groher further told Plaintiff that she “needed to love sales like [Ms. Groher],” and shared that another individual, a white male, would be “stuck [in his current role] for years because he didn't have the passion for sales.” [Id.] Plaintiff did not know how this applied to her. [Id.]
Plaintiff did not receive a title change or additional compensation for this new responsibility. [Id. at 1]
Plaintiff also alleges that, throughout her time with the Outbound Sales team, there was an internal policy of endorsing employees to apply for positions. [Id.] At some point after learning that she would not be endorsed for a promotion, Plaintiff “went and sat at [her] desk and focused on [her] work.”[Id.] She “directed anyone who had questions for [her] to [her] manager.” [Id.] Plaintiff also set up a meeting with a different manager in order to help Plaintiff improve her call process. [Id.] “In retaliation, [Plaintiff's manager, Chad Benoit] set up an impromptu [one-on-one meeting], asked [Plaintiff] why [she] wasn't helping other co-workers, and said [Plaintiff's] behavior was aggressive.” [Id. at 12] Mr. Benoit also wrote out a “Period of Intense Coaching (PIC) plan.” [Id. at 2] During the meeting, Plaintiff provided explanations for the accusations, and Mr. Benoit agreed that there was a miscommunication. [Id.] Thus, while Plaintiff was informed that she “needed improvement” before she could be endorsed for a promotion, Mr. Benoit did not complete the PIC. [Id.]
Plaintiff alleges that she later learned that this was “not a Gusto policy at all” and that the policy “wasn't allowed.” [Id. at 1]
It is difficult to chronologically place many of Plaintiff's allegations, as the events described do not follow any particular order.
Plaintiff and Mr. Benoit had several other discussions. [Id.] Mr. Benoit reached out to his friends to “help facilitate a network of opportunities,” and “recognized that [Plaintiff] was very consistent in onboarding and training new hires.” [Id.] Together, Plaintiff and Mr. Benoit came up with ideas to turn this strength into an opportunity. [Id.] One idea was to create a “Subject Matter Expert (SME) role” for Plaintiff. [Id.] Defendant had previously created a new role for a white female employee after she had “refused to move to the next team.” [Id.] In Plaintiff's case, the Sales Committee decided that there was no need for a new role, and that Plaintiff would need to follow the established path towards promotion. [Id.] Plaintiff received a promotion in June 2019. [Id.] In the same month, Defendant created the SME role and selected two newer employees for the position, both of whom were white. [Id.]
This employee started the same day as Plaintiff, was not more knowledgeable than Plaintiff, and had lower metrics. [Id.]
In September 2020, Plaintiff received a call from a verbally abusive customer and hung up. [Id.] The customer reported Plaintiff. [Id.] Plaintiff's manager at the time, Beilin Zia, scheduled a meeting with Plaintiff to discuss the call. [Id.] During the meeting, Ms. Zia told Plaintiff that Plaintiff had handled the call incorrectly, that Plaintiff had provided incorrect information, and that Plaintiff was aggressive on the call. [Id.] Plaintiff disagreed and provided further context to the call. [Id.] Ms. Zia mentioned that Ms. Groher had reported that Plaintiff had a history of being aggressive, but Ms. Zia could not provide any examples when pressed. [Id.]
Also in September 2020, Plaintiff spoke with Defendant's “People Partner,” Mirissa Pesapane, and voiced concerns about Plaintiff's lack of upward mobility within the organization. [Id.] Plaintiff reported that she “felt like [the] ‘Aunt Jemima of the sales team,' meaning [Plaintiff] was good enough to do all the work and make contributions to better the team . . . but not good enough to be given opportunities to advance or gain [her] freedom.” [Id.] Ms. Pesapane agreed that both Plaintiff and the sales team needed to make some improvements, and gave Plaintiff some advice. [Id.] Ms. Pesapane could not promise an immediate move, but indicated that she could help Plaintiff prepare for upcoming roles, so long as Plaintiff met her metrics. [Id.] Plaintiff continued to meet and exceed her metrics. [Id.] Plaintiff reached back out to Ms. Pesapane for a follow-up, but Ms. Pesapane “wasn't willing to have another conversation with [Plaintiff].” [Id.]
In December 2020, Plaintiff sought out therapy to discuss her feelings of being discriminated against as a black woman and of being ignored. [Id.] Plaintiff was diagnosed with ADHD and General Anxiety Disorder. [Id.] Plaintiff began to have conversations at work about how her ADHD was affecting her. [Id. at 3] In July 2021, Plaintiff had a meeting with Ms. Zia about navigating her diagnosis, and Plaintiff was told to reach out to Defendant's accommodations team. [Id.] Ms. Zia provided a link, but “it just went to a general page.” [Id.] Ms. Zia eventually reached out to the accommodations team on Plaintiff's behalf. [Id.]
Plaintiff held an accommodations meeting with an HR specialist, Eula Ernst, in October 2021. [Id.] Plaintiff “disclosed [her] disability and talked about how it affected her work.” [Id.] Plaintiff also voiced that she felt discriminated against and that she “felt like the ‘Aunt Jemima of the sales team.'” [Id.] Plaintiff shared her belief that Ms. Zia declined to endorse her for promotions for biased reasons, and learned that the practice of endorsements was not allowed. [Id.] During a follow-up conversation, Ms. Ernst told Plaintiff that she would directly address Plaintiff's concerns with Ms. Zia and Ms. Groher. [Id.] Plaintiff expressed concern that these “discussions would lead back to [Plaintiff] and could adversely affect [Plaintiff].” [Id.] Plaintiff was assured that this would not occur. [Id.]
In November 2021, Plaintiff was transferred to a new team. [Id.] On March 23, 2022, Plaintiff had a meeting with her new manager, Moe Campbell, and Michelle Rich from the “Revenue [T]eam,” addressing concerns about Plaintiff's metrics from December 2021 to March 2022. [Id.] Plaintiff explained these discrepancies to the best of her knowledge. [Id.] During another meeting on March 28, 2022, Mr. Campbell again raised the issue, but mentioned that “he didn't think anything would come of it because it wasn't something he had observed, and the concerns raised weren't consistent with [Plaintiff's] general performance.” [Id.]
On April 1, 2022, Plaintiff attended a meeting with Mr. Campbell and Ms. Ernst. [Id.] Mr. Campbell read from a script stating that “based on [Defendant's] investigation, they believed that [Plaintiff's] metrics form the last four months were with malicious intent and violated the Sales Call Policy.” [Id.] Plaintiff was then terminated. [Id.] Plaintiff later heard from a friend that Ms. Zia had asked about Plaintiff, and had implied that Ms. Zia had “really liked” Plaintiff and had not been the one blocking Plaintiff from promotions but was instead “given instructions on how to handle [Plaintiff's] inquiries,” perhaps from Ms. Groher. [Id.]
On the basis of these allegations, Plaintiff brings four claims: (1) race discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; (2) sex discrimination under Title VII; (3) retaliation under Title VII; and (4) failure to accommodate under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. On January 2, 2024, Defendant filed the instant Motion. [#23] Plaintiff has responded to the Motion [#29] and Defendant has replied [#30].
II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The court's ultimate duty is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). The Court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
Defendant argues that Plaintiff's claims must be dismissed because: (1) Plaintiff did not timely file this action after receiving her notice of right to sue letter from the EEOC; (2) Plaintiff failed to timely exhaust her administrative remedies as to her claims; and (3) Plaintiff failed to plead the elements of her claims. [#23] The Court addresses each argument below.
A. Timely Filing
A Title VII plaintiff, and an ADA plaintiff asserting claims of workplace discrimination, must file her lawsuit within 90 days of receiving her right-to-sue notice from the EEOC. 42 U.S.C. § 2000e-5(f)(1); Id. at § 12117(a); see also Marshall v. Fed. Exp. Corp., 130 F.3d 1095, 1098 (D.C. Cir. 1997) (“Before bringing suit in federal court, ADA plaintiffs, like those under Title VII, must exhaust their administrative remedies by filing an EEOC charge and giving that agency a chance to act on it.”). The ninety-day filing deadline operates like a statute of limitations, rather than a jurisdictional prerequisite, and is subject to estoppel, waiver, and equitable tolling. Jarrett v. U.S. Sprint Communications Co., 22 F.3d 256, 259-60 (10th Cir. 1994). “[Questions regarding [a] statute of limitations may be resolved under Rule 12(b)(6) when it is clear from the face of the complaint that the right sued upon has been extinguished.” Int' Bhd. of Elec. Workers, Local #111 v. Pub. Serv. Co. of Colo., 176 F.Supp.3d 1102, 1112 (D. Colo. 2016).
Here, it is clear from the face of Plaintiff's Complaint (and the attached exhibits) that the EEOC right-to-sue letter was issued on April 5, 2023. [#1-4 at 1] Plaintiff's Complaint was docketed on July 6, 2023. [ See generally #1] Defendant argues that the latest date Plaintiff could sue was July 4, 2023-90 days after the date of issuance listed on the right-to-sue letter. [#23 at 6] Notably, however, “[t]he ninety-day limit begins to run on the date the complainant actually receives the EEOC right-to-sue notice, making that date a material fact.” Calvert v. Roadway Exp. Inc., 32 Fed.Appx. 510, 512 (10th Cir. 2002) (quoting Witt v. Roadway Express, 136 F.3d 1424, 1429 (10th Cir. 1998)) (emphasis added).
Defendant asserts that the “EEOC issued Plaintiff the [right-to-sue letter] via email on April 5, 2023,” and cites the Seventh Circuit's opinion in Lax v. Mayorkas for the proposition that the receipt of an email commences the filing window. [#23 at 6 (citing Lax v. Mayorkas, 20 F.4th 1178, 1182 (7th Cir. 2021))] In Lax, the court had before it “the full agency decision and related email transmission,” and a sworn declaration by the plaintiff “conceding] that he opened these emails and read them on the day they were sent.” 20 F.4th at 1180-82 & n.1. Here, in contrast, Defendant's factual assertion that Plaintiff received the right-to-sue letter by email on April 5 is not clear from the face of the Complaint or its attached exhibits. And the address line on the attached right-to-sue letter lists only Plaintiff's physical address, indicating that the right-to-sue letter could have been sent by physical mail. [#1 -4 at 1] Defendant has not included any exhibits that are proper for the Court to consider at a Motion to Dismiss stage. Accordingly, for the purposes of this Motion, the Court is unable to determine the date that Plaintiff received the right-to-sue letter.
In the context of mailed right-to-sue letters (as opposed to emailed right-to-sue letters), the Tenth Circuit has explained that “[w]hen the receipt date for an EEOC right-to-sue letter is unknown . . . federal courts have presumed various receipt dates ranging from three to seven days after the letter was mailed.” Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th Cir. 2001). Plaintiff's Complaint, filed 92 days after the right-to-sue letter was issued, would be timely within this presumptive receipt range. Because untimeliness of Plaintiff's action is not clear from the Complaint or the attached exhibits, the Court determines that dismissal on timeliness grounds would be improper at this stage of the proceedings.
The Court briefly addresses further deficiencies with Defendant's timeliness argument. Defendant argues that the latest date that Plaintiff could sue was July 4, 2023. [##23 at 6; 30 at 5] Even accepting Defendant's unsupported factual assertion that Plaintiff received the right-to-sue letter on April 5, 2023 for the purpose of commencing the 90-day filing window, Defendant's calculation is incorrect. July 4, 2023 was a legal holiday, see Fed.R.Civ.P. 6(a)(6)(A), meaning that Plaintiff had until “the end of the next day that is not a Saturday, Sunday, or legal holiday” to timely bring suit. Fed.R.Civ.P. 6(a)(1)(C); see Carlson v. King Pontiac GMC, No. 06-cv-01900-WDM-CBS, 2007 WL 1097862, at *1 (D. Colo. Apr. 12, 2007) (holding that an action was timely brought when filed 91 days after receipt of an EEOC right-to-sue letter, because 90 days from receipt fell on a Sunday). Thus, Plaintiff had until the end of July 5, 2023 (a Wednesday) to initiate a suit. In her response, Plaintiff asserts that she submitted her Complaint and the associated attachments to the Court on July 5, 2023 at 5:00 pm. [#29 at 4] Defendant has cited no authority indicating that the date of the Clerk of Court's receipt of Plaintiff's Complaint should not be considered the filing date. See Fed.R.Civ.P. 6(a)(4)(B) (explaining that the “last day” to file by non-electronic filing ends “when the clerk's office is scheduled to close”).
Plaintiff further notes that, after she submitted her Complaint and exhibits, she received a notice on July 6, 2023 informing her that one of her attachments could not be uploaded due to a technical error. [#29 at 4] Plaintiff argues that she promptly resubmitted the documents on July 6, and the Complaint was docketed. [Id.] Plaintiff's argument could be liberally construed as an assertion that, to the extent that her Complaint was not “filed” for purposes of the 90-day window on the date it was submitted to the Clerk' Office, that window should be tolled by one day until July 6 to account for the technical error. The bar to establish tolling is high. See Montoya v. Chao, 296 F.3d 952, 957-58 (10th Cir. 2002). But the United States Supreme Court has explicitly allowed equitable tolling “in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period.” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) (collecting cases). The Court is therefore unable to conclude “beyond a doubt that [Plaintiff] can prove no set of facts that toll” the 90-day window to file, and finds that dismissal at the motion-to-dismiss stage is inappropriate on these grounds as well. Matthews v. Wiley, 744 F.Supp.2d 1159, 1168 (D. Colo. 2010) (quoting Tello v. Dean Witter Reynolds, Inc., 410 F.3d 1275, 1288 n.13 (11th Cir. 2005)).
Plaintiff's assertions appear to be supported by the docket. [##1-2 (blank attachment to the Complaint); 1-4 (resubmitted attachment)]
Ultimately, a determination that Plaintiff's action is untimely because it was filed over 90 days after Plaintiff received her right-to-sue letter requires the Court to make two factual findings: (1) the date that Plaintiff received her right-to-sue letter; and (2) the date that Plaintiff filed this action. Neither date is apparent from the Complaint or the exhibits before the Court. Nor is it clear “beyond a doubt” that Plaintiff could prove “no set of facts” that would toll the 90-day window until July 6, 2023. Matthews, 744 F.Supp.2d at 1168 (quoting Tello, 410 F.3d at 1288 n. 13). Accordingly, the Court finds that a dismissal of Plaintiff's action on timeliness grounds at the motion-to-dismiss stage would be inappropriate.
B. Exhaustion
“[A] plaintiff normally may not bring a Title VII [or an ADA] action based upon claims that were not part of a timely-filed EEOC charge for which the plaintiff has received a right-to-sue letter.” Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194 (10th Cir. 2004) (quotation omitted); see also 42 U.S.C. § 2000e-5(f)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA); Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1185 (10th Cir. 2018) (explaining that the requirement that an ADA plaintiff exhaust her claims before the EEOC is not a jurisdictional prerequisite, but permits the employer to raise an affirmative defense of failure to exhaust). “[A]fter a plaintiff receives a notice of her right to sue from the EEOC, that plaintiff's claim in court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC.” Smith v. Cheyenne Ret. Invs. L.P., 904 F.3d 1159, 1164 (10th Cir. 2018) (quotation omitted).
Claims must also be timely filed with the EEOC. “In a State that has an entity with the authority to grant or seek relief with respect to the alleged unlawful practice, an employee who initially files a grievance with that agency must file the charge with the EEOC within 300 days of the employment practice; in all other States, the charge must be filed within 180 days.” Nat' R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002), superseded in part by statute, Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009); see 42 U.S.C. § 2000e-5(e)(1). “A claim is time barred if it is not filed within these time limits.” Morgan, 536 U.S. at 109. And when considering discrete retaliatory or discriminatory acts, “[a] party . . . must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it.” Id. at 110; see also id. at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.”). Put differently, “each discrete incident of [discriminatory or retaliatory] treatment constitutes its own ‘unlawful employment practice' for which administrative remedies must be exhausted.” Lincoln, 900 F.3d at 1181 (quotation omitted). Prior, time-barred acts, while no longer actionable, may be used as background evidence in support of a timely claim. Morgan, 536 U.S. at 113.
Defendant only asserts that the 300-day limitation applies to this action. [#23 at 4-6]
The Tenth Circuit has clarified that the exhaustion of administrative remedies is not a jurisdictional pre-requisite to an employment discrimination claim, but rather an affirmative defense. Lincoln, 900 F.3d at 1185. Thus, failure to exhaust may be appropriately raised in a motion to dismiss when the grounds for the defense appear on the face of the Complaint. Cirocco v. McMahon, 768 Fed.Appx. 854, 858 (10th Cir. 2019).
Defendant argues that many of the allegations contained in Plaintiff's Complaint occurred more than 300 days prior to the date that Plaintiff filed her EEOC charge. [#23 at 4-6] While not entirely clear, it appears that Plaintiff seeks recovery for discrete acts- primarily for failure to promote, failure to accommodate, and termination. See Morgan, 536 U.S. at 114 (identifying terminations and failures to promote as discrete acts); Johnson v. Norton Cnty. Hosp., 550 F.Supp.3d 937, 957 (D. Kan. 2021) (explaining that a defendant's failure to accommodate a plaintiff's disability is a discrete act, and collecting cases). Thus, the Court agrees with Defendant's premise that, absent grounds for estoppel or tolling, Plaintiff may not recover for any discrete acts that occurred more than 300 days prior to the date that Plaintiff filed her EEOC charge. See Morgan, 536 U.S. at 110, 113. Plaintiff may, however, use these allegations as background evidence to support a timely claim. Id. at 113.
Defendant asserts that Plaintiff filed her EEOC charge on July 28, 2022. [#23 at 4] Accordingly, any discrete act would have had to occur on or after the 300th day prior to July 28, 2022 in order to be actionable. The Court, however, does not find support for Defendant's assertion on the face of the Complaint (which does not reference the date that the charge was filed) [##1; 1-1], or the EEOC charge docketed with the Court (which is undated) [#4]. Nor does Defendant introduce any additional evidence appropriate for consideration at the motion-to-dismiss stage or indicate that its Motion is appropriate for treatment as a motion for summary judgment. See Cirocco, 768 Fed.Appx. at 858. Because the date that the EEOC charge was filed is not apparent from the Complaint or its incorporated exhibits, the Court declines to find at the motion-to-dismiss stage that Plaintiff's claims are time-barred.
Defendant calculates this date as September 1, 2021. [#23 at 4] By the Court's calculation, this date is October 1, 2021.
Defendant briefly states that Plaintiff's claims asserted in this action “rely on facts never raised at all in her [EEOC] Charge.” [#23 at 4 (emphasis omitted)] Aside from this reference, Defendant does not develop this argument in any way. Nor does Defendant address the relevant standard, which is whether the conduct alleged in this action would “fall within the scope of an EEOC investigation which would reasonably grow out of the charges actually made.” Smith, 904 F.3d at 1164. The Court therefore declines to consider Defendant's argument that Plaintiff failed to exhaust her claims by failing to raise the allegations in her EEOC Charge. See Ctr. for Biological Diversity v. Pizarchik, 858 F.Supp.2d 1221, 1230 n.11 (D. Colo. 2012) (declining to consider a “woefully underdeveloped” argument); South Denver Anesthesiologists, PC v. Oblachinski, No. 06-cv-02425-REB-BNB, 2007 WL 2255123 at *1 (D. Colo. Aug. 3, 2007) (noting that the court does not consider “cursory, unsupported, or otherwise inadequately briefed arguments”).
The charge does mention failures to promote and ultimate termination. [#4]
C. Title VII Discrimination
Plaintiff asserts claims of race and sex discrimination. [#1-1 at 4-6] Title VII creates a cause of action for discrimination based on an individual's “race, color, religion, sex, or national origin.” Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 457 (1975) (quotation omitted). Plaintiff can prove a disparate treatment claim “either (1) by direct evidence that a workplace policy, practice, or decision relies expressly on a protected characteristic, or (2) by using the burden-shifting framework set forth in [McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)].” Young v. United Parcel Serv., Inc., 575 U.S. 206, 213 (2015).
Here, Plaintiff does not allege any direct evidence of discrimination. [See generally ##1; 1-1] Plaintiff therefore must rely upon the burden-shifting framework set forth in McDonnell Douglas. To make a prima facie case under that framework, a plaintiff must show that: (1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the challenged action occurred under circumstances giving rise to an inference of discrimination. Bennett v. Windstream Commc'ns, Inc., 792 F.3d 1261, 1266 (10th Cir. 2015). If the plaintiff makes this showing, then the employer must have an opportunity to articulate some legitimate, non-discriminatory reason for its action. Young, 575 U.S. at 213. If the employer articulates such a reason, then the burden shifts back to the plaintiff to prove the employer's proffered reason was pretextual. Id.
“The prima facie case under McDonnell Douglas, however, is an evidentiary standard, not a pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510 (2002). As the Supreme Court explained, “under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case”-e.g., where a plaintiff is able to produce direct evidence of discrimination. Id. at 511. The Supreme Court further cautioned that “the precise requirements of a prima facie case can vary depending on the context” and thus “it may be difficult to define the precise formulation of the required prima facie case in a particular case” before “discovery has unearthed relevant facts and evidence.” Id. at 512.
But although a plaintiff is not required to set forth a prima facie case of discrimination in the complaint, “she is required to set forth plausible claims.” Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). The plaintiff may not merely rely upon “the type of conclusory and formulaic recitations disregarded by the Court in Iqbal.” Id. “While specific facts are not necessary, [] some facts are.” Id. (quotation omitted). Moreover, although the plaintiff is not required to allege a prima facie case, “[t]he inferences offered by the McDonnell Douglas framework assist judges in resolving motions to dismiss by providing an analytical framework to sift through the facts alleged.” Morman v. Campbell Cnty. Mem'l Hosp., 632 Fed.Appx. 927, 933 (10th Cir. 2015); see also Khalik, 671 F.3d at 1192 (explaining that “the elements of each alleged cause of action help to determine whether [the plaintiff] has set forth a plausible claim”).
Defendant argues that Plaintiff has failed to plead a prima facie case of race or sex-based discrimination. [#23 at 6-8] The Court agrees. Plaintiff's allegations do not explain how the “challenged action[s] occurred under circumstances giving rise to an inference of discrimination.” Bennett, 792 F.3d at 1266. Indeed, it is unclear to the Court which actions Plaintiff seeks to challenge or the circumstances surrounding them. For example, Plaintiff alleges that white (male and female) co-workers were “promoted ahead of [her]” (or received “endorsements” before she did) but does not appear to allege that Plaintiff herself sought any of the positions that her co-workers were promoted into. [#1-1 at 4] Conversely, Plaintiff lists ten examples of positions that she applied for and did not receive, but does not allege any facts regarding the circumstances surrounding these rejections indicating Plaintiff's qualifications for these roles or that these roles were filled by non-minorities. [Id.]; see Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1328 (10th Cir. 1999) (“To carry the initial burden of establishing a prima facie case of race discrimination for a failure to promote claim, the plaintiff must typically show that he or she (1) belongs to a minority group; (2) was qualified for the promotion; (3) was not promoted; and (4) that the position remained open or was filled with a non-minority.” (quotation omitted)), abrogated on other grounds as recognized in Eisenhour v. Weber Cnty., 744 F.3d 1220, 1227 (10th Cir. 2014). Without additional information, the Court is unable to infer that any of these referenced actions were taken on account of Plaintiff's race or sex.
In another instance, Plaintiff alleges that Defendant refused to create a new role for Plaintiff, telling Plaintiff that it had no need for the new role. [#1-1 at 4] Plaintiff was then promoted. [Id.] In the same month, Defendant created the new role and selected two newer, white employees for the position. [Id.] While this could indicate some degree of differential treatment, Plaintiff does not allege facts supporting the inference that her promotion-in lieu of a placement in a new role-constitutes an adverse change in employment status. See Muldrow v. City of St. Louis, 144 S.Ct. 967, 974 (2024) (“[Title VII] targets practices that treat[] a person worse because of sex or other protected trait.” (quotation omitted)).
In her response brief, Plaintiff cites to no authorities to support her position that her Complaint states a claim, and instead relies heavily on facts that are not alleged in her Complaint. [#29 at 4-7] For example, Plaintiff recasts what was alleged to be a “promotion” in the Complaint as a “transfer.” [Id. at 6]; see also Muldrow, 114 S.Ct. at 976-77 (explaining that a discriminatory transfer that leaves an employee “worse off,” even if not “significantly so,” violates Title VII). Plaintiff similarly provides additional details about her qualifications and termination, and, unlike in her Complaint, appears to assert that her termination was the result of race-based discrimination. [#23 at 5; see #1-1 at 4 (failing to include any allegations relating to her termination under Plaintiff's claim titled: “Race Discrimination in Violation of Title VII”)]
The Court does not consider any additional factual allegations raised by Plaintiff in briefing, which do not address Defendant's argument that the allegations contained in the Complaint fail to state a claim of discrimination. See In re Qwest Commc'ns Int'l, Inc., 396 F.Supp.2d at 1203 (disregarding additional factual claims asserted in briefing on a motion to dismiss, explaining that “plaintiffs may not effectively amend their Complaint by alleging new facts in their response to a motion to dismiss”). But the Court is cognizant that the inclusion of new allegations in Plaintiff's response brief may indicate Plaintiff's desire to amend her Complaint. See Adams v. C3 Pipeline Constr. Inc., 30 F.4th 943, 971, 976 (10th Cir. 2021) (explaining that “[Tenth Circuit] cases interpret the inclusion of new allegations in a response to a motion for summary judgment, as a potential request to amend the complaint,” and remanding a dismissed case for further consideration of the plaintiff's “implied request to amend her complaint”). In addition, when a plaintiff proceeds pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts [s]he has alleged and it would be futile to give h[er] an opportunity to amend.” Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001); see also Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”). Accordingly, the Court respectfully RECOMMENDS that Defendant's Motion to Dismiss be GRANTED to the extent that it seeks dismissal of Plaintiff's first and second claims, and that these claims be DISMISSED WITHOUT PREJUDICE.
D. Title VII Retaliation
A similar analysis applies to Plaintiff's claim of retaliation. “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) (quotation omitted). “To state a prima facie case of retaliation, [the plaintiff] must demonstrate that[] (1) she engaged in protected opposition to discrimination; (2) [the defendant] took an adverse employment action against her; and (3) there exists a causal connection between the protected activity and the adverse action.” Id. (quotation omitted)
Plaintiff appears to allege that her termination was in retaliation for statements made to an HR supervisor that Plaintiff felt discriminated against. [#1-1 at 6-7] Assuming that Plaintiff's statements constituted protected activity, see Somoza v. Univ. of Denver, 513 F.3d 1206, 1213-14 (10th Cir. 2008) (explaining that informal complaints of discrimination to one's superiors can constitute protected activity), Plaintiff's allegations do not allow for an inference that her termination was causally connected to the statements.
The required causal connection may be established with “very close temporal proximity between the protected activity and the retaliatory conduct.” O'Neal v. Ferguson Const. Co., 237 F.3d 1248, 1253 (10th Cir. 2001). Plaintiff alleges that the meeting during which she shared her concerns with the HR supervisor occurred in “October 2021.” [#1-1 at 6-7] Plaintiff then had a follow-up meeting a “few weeks” after the October 2021 meeting during which the HR supervisor informed Plaintiff that, while Plaintiff's name would not be mentioned, the HR supervisor would discuss “some of the access issues” Plaintiff was experiencing with Plaintiff's manager and the Head of Sales. [Id. at 7] Plaintiff alleges that concerns were raised with her metrics on March 23, 2022, and that she was terminated during a meeting with Mr. Campbell and Ms. Ernst on April 1, 2022. [Id.] Under Tenth Circuit precedent, “it is . . . patent that if the adverse action occurs three months out and beyond from the protected activity, then the action's timing alone will not be sufficient to establish the causation element.” Conroy v. Vilsack, 707 F.3d 1163, 1181 (10th Cir. 2013). Because the gap between Plaintiff's alleged protected conduct and the adverse action exceeds this three-month threshold, Plaintiff cannot rely solely on temporal proximity to establish causation. Id. at 1181-83; Jackson-Cobb v. Sprint United Mgmt., 173 F.Supp.3d 1139, 1148 (D. Colo. 2016) (citing O'Neal, 237 F.3d at 1253).
And Plaintiff offers no other allegations indicating that her complaints made to the HR supervisor influenced the termination decision.
Plaintiff does include an allegation that her new manager, Mr. Campbell, “mention[ed] [that] he didn't think anything would come of [the concerns raised about Plaintiff's metrics] because it wasn't something he had observed, and the concerns raised weren't consistent with [Plaintiff's] general performance.” [#1-1 at 7] Nevertheless, Mr. Campbell terminated Plaintiff less than a week later. [Id.] While this allegation could indicate that Mr. Campbell was influenced by something other than the concerns about Plaintiff's metrics, Plaintiff never alleges that Mr. Campbell had notice of Plaintiff's discrimination complaints. Davis v. BAE Sys. Tech. Sols. & Servs. Inc., 764 Fed.Appx. 741, 747 (10th Cir. 2019) (affirming a Rule 12(b)(6) dismissal when the plaintiff failed to allege any facts indicating “that the individuals who took adverse action against him knew of his protected [conduct].” (quotation omitted)).
In her Response, Plaintiff again cites no authority and relies heavily on factual allegations not contained in her Complaint. [#29 at 7-8] The Court, again, will not consider these additional allegations, see In re Qwest Commc'ns Int'l, Inc., 396 F.Supp. at 1203, but concludes that Plaintiff should have the opportunity to amend her Complaint. See Adams, 30 F.4th at 971; Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127. Accordingly, the Court respectfully RECOMMENDS that Defendant's Motion to Dismiss be GRANTED to the extent that it seeks dismissal of Plaintiff's third claim, and that this claim be DISMISSED WITHOUT PREJUDICE.
E. Failure to Accommodate
Plaintiff alleges that Defendant violated the ADA by failing to accommodate her disability. [#1 -1 at 7-8] Specifically, she alleges that she was “diagnosed with ADHD and
General Anxiety Disorder,” “spoke about how [her] ADHD was affecting [her],” and participated in two “accommodations meeting[s]” during which Plaintiff “disclosed [her] disability and talked about how it affected [her] work.” [#1-1 at 8]
A failure to accommodate claim is evaluated under “a modified McDonnell Douglas burden-shifting framework.” Lincoln, 900 F.3d at 1204. “Under the first step of the modified framework, a plaintiff must demonstrate that ‘(1) [she] is disabled; (2) [she] is otherwise qualified; and (3) [she] requested a plausibly reasonable accommodation.'” Id. (quoting Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir. 2017)).
“The ADA defines ‘disability' as ‘(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.'” Kellogg v. Energy Safety Servs. Inc., 544 F.3d 1121, 1124 (10th Cir. 2008) (quoting 42 U.S.C. § 12102); see also Scavetta v. Dillon Cos., Inc., 569 Fed.Appx. 622, 624 (10th Cir. 2014) (“To satisfy the ADA's definition of disability, a plaintiff must (1) have a recognized impairment, (2) identify one or more appropriate major life activities, and (3) show [that] the impairment substantially limits one or more of those activities.” (quotation omitted)). Here, Plaintiff has not alleged any facts from which the Court can plausibly infer that Plaintiff has a physical or mental impairment that substantially limits one or more of her major life activities, that she has a record of such impairment, or that she is regarded as having such an impairment.The Complaint merely alleges that Plaintiff suffers from ADHD and General Anxiety Disorder. [#1-1 at 8] That alone, however, does not necessarily constitute a disability for purposes of the ADA. See, e.g., Johnson v. Sedgwick Cnty. Sheriff's Dep't, 461 Fed.Appx. 756, 759 (10th Cir. 2012) (“For [the plaintiff's] ADHD to have been a disability under the ADA, it must have substantially limit[ed] one or more of [his] major life activities.” (quotation omitted)); Russell v. Phillips 66 Co., 184 F.Supp.3d 1258, 1268 (N.D. Okla. 2016) (“Depression, anxiety, and ADHD are not per se disabilities, and merely stating that he/she has received a diagnosis of one of these conditions does not establish that a plaintiff is disabled under the ADA.”), aff'd, 687 Fed.Appx. 748 (10th Cir. 2017); Castaneda v. City of Albuquerque, 276 F.Supp.3d 1152, 1180 (D.N.M. 2016) (“[N]umerous courts, including the Tenth Circuit, have concluded that ADHD does not limit major life activities sufficiently to raise a claim under the ADA.” (quotation omitted)); see also Beebe v. Colorado, No. 18-CV-01357-CMA-KMT, 2019 WL 6255763, at *4 (D. Colo. Nov. 22, 2019) (explaining that “the Tenth Circuit does not recognize a perse disability in ADA cases” because the ADA “requires an individualized assessment to determine whether an impairment substantially limits a major life activity” (quotation omitted)). Thus, without more, the Court cannot conclude that Plaintiff has plausibly alleged that she was disabled within the meaning of the ADA, and she therefore fails to state a failure to accommodate claim.
“In the Tenth Circuit, a person is regarded as disabled when ‘(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.'” Russell v. Phillips 66 Co., 184 F.Supp.3d 1258, 1270 (N.D. Okla. 2016) (quoting Johnson v. Weld Cnty., 594 F.3d 1202, 1219 (10th Cir. 2010)), aff'd, 687 Fed.Appx. 748 (10th Cir. 2017). Plaintiff makes no allegation or argument that she was “regarded as disabled” by Defendant. [See ##1; 1-1; 29] Plaintiff instead argues solely that she “has [ADHD], which is a protected disability in the United States.” [#29 at 8]
In addition, a plaintiff bringing a failure to accommodate claim must show that she requested a plausibly reasonable accommodation. Lincoln, 900 F.3d at 1204. Here, Plaintiff alleges that she discussed her diagnosis with certain individuals, and had conversations about “navigating [her] new diagnosis.” [#1-1 at 8] As a result of these conversations, Plaintiff was encouraged to “reach out to the accommodations team.” [ Id. ] Plaintiff did so, and “disclosed [her] disability and talked about how it affected [her] work” during an “accommodations meeting.” [Id.] Plaintiff then had a “follow-up meeting . . . about [her] accommodations.” [Id.] Noticeably absent from these allegations is any assertion that Plaintiff actually requested an accommodation or that such a request was denied. Accordingly, Plaintiff's allegations cannot state a claim for a failure to accommodate.
For these reasons, the Court respectfully RECOMMENDS that Defendant's Motion to Dismiss be GRANTED to the extent that it seeks dismissal of Plaintiff's fourth claim, and that this claim be DISMISSED WITHOUT PREJUDICE. Oxendine, 241 F.3d at 1275; Reynoldson, 907 F.2d at 127.
IV. CONCLUSION
For the reasons set forth above, the Court respectfully RECOMMENDS that Defendant's Motion to Dismiss [#23] be GRANTED and that Plaintiff's Complaint be DISMISSED WITHOUT PREJUDICE. In the event that this Recommendation is adopted, the Court further RECOMMENDS that Plaintiff be given 21 days from the entry of such Order to file an Amended Complaint that cures the deficiencies identified herein.