Warrington v. Department of Homeland Security et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 22-cv-02792-NYW-NRN
SCOTT THOMAS WARRINGTON,
Plaintiff,
v.
DEPARTMENT OF HOMELAND SECURITY (DHS),
TRANSPORTATION SECURITY ADMINISTRATION (TSA),
ALEJANDRO NICHOLAS MAYORKAS, individually and in his official capacity as
Secretary of the DHS, and
DAVID PETER PEKOSKI, individually and in his official capacity as Administrator of
the TSA,
Defendants.
ORDER ON MAGISTRATE JUDGE’S RECOMMENDATION
This 	matter 	is 	before 	the 	Court 	on 	the 	Report 	and 	Recommendation 	on
Defendants’ Motion to Dismiss and Plaintiff’s Motion for Summary Judgment (the
“Recommendation”) issued by the Honorable N. Reid Neureiter on August 2, 2024.
[Doc. 77]. Judge Neureiter recommends that Defendants’ Motion to Dismiss, [Doc. 37],
be granted and that Plaintiff’s Motion for Summary Judgment, [Doc. 64], be denied, see
[Doc. 77 at 23]. 	Plaintiff Scott Thomas Warrington (“Plaintiff” or “Mr. Warrington”) has
filed objections to the Recommendation. [Doc. 81]. For the reasons set forth in this Order,
Plaintiff’s objections are respectfully SUSTAINED in part and OVERRULED in part and
the Recommendation is ADOPTED in part.
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LEGAL STANDARDS
I. 	Rule 72(b)
A 	district 	court 	may 	refer 	a 	dispositive 	motion 	to 	a 	magistrate 	judge 	for
recommendation. 28 U.S.C. § 636(b)(1)(B). The district court “must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” 	Fed.
R. Civ. P. 72(b)(3). 	“[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. One Parcel of Real Prop.,
73 F.3d 1057, 1060 (10th Cir. 1996). 	Such specific objections permit “the district judge
to focus attention on those issues—factual and legal—that are at the heart of the parties’
dispute.” Id. at 1059 (quotation omitted).
II. 	Rule 12(b)(2)
Rule 12(b)(2) of the Federal Rules of Civil Procedure allows a defendant to
challenge a court’s exercise of personal jurisdiction over it. Fed. R. Civ. P. 12(b)(2). The
plaintiff bears the burden of demonstrating that a court has personal jurisdiction over the
defendant. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d 1063, 1069 (10th Cir.
2008). 	When a court decides a Rule 12(b)(2) motion to dismiss without holding an
evidentiary hearing, “the plaintiff need only make a prima facie showing of personal
jurisdiction to defeat the motion.” 	AST Sports Sci., Inc. v. CLF Distrib. Ltd., 514 F.3d
1054, 1056–57 (10th Cir. 2008). This showing may be made through affidavits or other
written materials. Dental Dynamics, LLC v. Jolly Dental Grp., LLC, 946 F.3d 1223, 1228
(10th Cir. 2020). 	“The plaintiff has the duty to support jurisdictional allegations in a
complaint by competent proof of the supporting facts if the jurisdictional allegations are
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challenged by an appropriate pleading.” 	Pytlik v. Pro. Res., Ltd., 887 F.2d 1371, 1376
(10th Cir. 1989).
At this stage, the trial court must take the well-pleaded allegations in the plaintiff’s
complaint as true, so long as they are not contradicted by the defendant’s affidavits.
Wenz v. Memery Crystal, 55 F.3d 1503, 1505 (10th Cir. 1995). The court need not credit
conclusory, implausible, or speculative allegations. Dental Dynamics, 946 F.3d at 1228;
Dudnikov, 514 F.3d at 1070.
III. 	Rule 12(b)(6)
Under Rule 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), the 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) (quotation omitted). 	The 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). Rather, “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) (quotation omitted).
IV. 	Pro Se Filings
Because 	Plaintiff 	proceeds 	pro 	se, 	the 	Court 	affords 	his 	filings 	a 	liberal
construction. Haines v. Kerner, 404 U.S. 519, 520–21 (1972) (per curiam). But the Court
cannot and does not act as his advocate, Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991), and applies the same procedural rules and substantive law to Plaintiff as to
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represented parties, see Murray v. City of Tahlequah, 312 F.3d 1196, 1199 n.3 (10th Cir.
2002); Dodson v. Bd. of Cnty. Comm’rs, 878 F. Supp. 2d 1227, 1236 (D. Colo. 2012).
BACKGROUND
The 	factual 	background 	of 	this 	case 	is 	set 	forth 	in 	Judge 	Neureiter’s
Recommendation, see [Doc. 77 at 2–4], and the Court repeats it here only as necessary
to resolve Plaintiff’s objections.
Mr. Warrington, who is over 40 years of age, was employed by the Transportation
Security Administration (“TSA”) as a transportation security officer from 2014 to 2020.
[Doc. 11 at ¶ 1; Doc. 11-1 at ¶ 27].1 Throughout his employment, he received favorable
annual and quarterly performance reviews. [Doc. 11 at ¶ 2].
In May 2019, Mr. Warrington “started a friendship” with a United Airlines employee.
[Id. at ¶ 8]. 	The two went on a date in June, and on September 26, 2019, they “agreed
to be only friends.” 	[Id.]. 	Mr. Warrington was later informed that the United Airlines
employee had made a harassment complaint against him. 	[Id. at ¶ 9]. 	Plaintiff was
instructed to cease communications with the employee, and he obeyed this instruction,
though they still communicated at work about work-related things. [Id. at ¶¶ 9–10].
Plaintiff alleges that, in November 2019, he accidentally “butt dial[ed]” the United
Airlines employee; when he realized the call in progress, he ended the call, which had not
been answered. 	[Id. at ¶ 12]. 	On December 9, 2019, Plaintiff was given a Notice of
Proposed Removal, informing Plaintiff that he was charged with “Conduct Unbecoming,”
based on the alleged harassment, and “Failure to Follow Instructions,” based on the
1 Plaintiff’s Amended Complaint contains an attachment titled “Statements and Claims.”
See [Doc. 11-1 at 1]. 	The Court construes [Doc. 11] and [Doc. 11-1] together to be
Plaintiff’s Amended Complaint.
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November “butt dial.” [Id. at ¶ 13]. His employment was eventually terminated on January
16, 2020. [Id. at ¶ 17]. Plaintiff raises a number of issues with the termination process,
including that (1) the investigation into the harassment claim was “completely unfair and
inadequate”; (2) he was not allowed to present evidence in his defense; (3) TSA “failed
to follow the management directives applicable to [Plaintiff’s] employment in making the
decision to terminate [him]”; and (4) TSA “rel[ied] on inherently unreliable evidence.” [Id.
at ¶¶ 14, 18–19; Doc. 11-1 at ¶ 35]. Plaintiff was replaced by an employee “outside of his
age class.” [Doc. 11-1 at ¶ 30].
After his termination, Mr. Warrington “filed administrative charges alleging age
discrimination with the appropriate agency office,” but “the Agency ruled against him on
or about July 17, 2022.” 	[Doc. 11 at ¶ 22]. Plaintiff initiated this lawsuit on October 21,
2022, [Doc. 1], and filed the operative Employment Discrimination Complaint (the
“Amended Complaint”) on December 1, 2022, [Doc. 11; Doc. 11-1]. 	In his Amended
Complaint, he names the TSA; the Department of Homeland Security (“DHS,” and
collectively with TSA, the “Agency Defendants”); Alejandro Mayorkas, the Secretary of
DHS 	(“Secretary 	Mayorkas”); 	and 	David 	Peter 	Pekoske, 	the 	TSA 	Administrator
(“Administrator Pekoske,” and with Secretary Mayorkas, the “Individual Defendants”) as
Defendants. [Doc. 11 at 1]. Plaintiff asserts three claims against all Defendants: (1) age
discrimination in violation of the Age Discrimination in Employment Act (“ADEA”); (2) a
Fifth Amendment substantive due process claim; and (3) a Fifth Amendment procedural
due process claim. [Doc. 11-1 at ¶¶ 22–48].
Defendants moved to dismiss Plaintiff’s claims, arguing that his claims are subject
to dismissal under Rule 12(b)(1), Rule 12(b)(2), Rule 12(b)(5), and Rule 12(b)(6).
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[Doc. 37 at 2–3]. 	A few months later, Plaintiff filed his Motion for Summary Judgment,
wherein he requests that judgment be entered in his favor. [Doc. 64 at 1]. Both of these
Motions were referred to Judge Neureiter for recommendation. [Doc. 38; Doc. 65].
Judge Neureiter recommends that the Court grant the Motion to Dismiss and deny
the Motion for Summary Judgment. 	[Doc. 77 at 2]. 	Plaintiff has objected to the
Recommendation, see [Doc. 81], to which Defendants have responded, see [Doc. 82].
ANALYSIS
I. 	The Motion to Dismiss
Judge Neureiter recommends that the Motion to Dismiss be granted in full.
[Doc. 77 at 2]. 	Specifically, he recommends that Plaintiff’s individual-capacity claims
against the Individual Defendants be dismissed because the Court lacks personal
jurisdiction over them. [Id. at 7–10]. Turning to the Agency Defendants, Judge Neureiter
recommends that, to the extent Plaintiff seeks money damages in conjunction with his
constitutional claims against the Agency Defendants, those claims be dismissed on
sovereign immunity grounds. [Id. at 12–13]. He further concludes that the constitutional
claims are subject to dismissal in their entirety because Plaintiff has not plausibly alleged
a violation of his substantive due process or procedural due process rights. 	[Id. at 13–
16]. 	And finally, he recommends that Plaintiff’s ADEA claim be dismissed for failure to
state a claim. [Id. at 16–22]. Plaintiff raises various objections to the Recommendation,
which the Court considers below.
A. 	Ruling Prior to Discovery
Plaintiff first appears to take issue with the possible dismissal of his claims prior to
the commencement of discovery. 	He represents that, with respect to his administrative
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proceeding, he “never received nor is there any document labeled dismissal and right to
sue letter, . . . nor was there ever a letter of determination submitted in some form to the
plaintiff.” 	[Doc. 81 at 1]. 	He argues that “[t]he plaintiff and the court must first have
DHS/TSA Civil Rights Division or the EEOC Federal Operations Division do their job and
provide the necessary documentation!” and that “no one should be dismissing this case
until all the relevant documentation is included.” [Id.]. According to Plaintiff, without these
documents, “not even Magistrate Judge N. Reid Neureiter or any court can reasonably
come to an informed recommendation conclusion [sic]” on the Motion to Dismiss. 	[Id.
at 2].
For additional background, the Court notes that Mr. Warrington has referenced the
underlying administrative process at various times in this litigation, appearing to assert
that he proved discrimination at that stage. See, e.g., [Doc. 47 at 1–2 (“Mr. Warrington
proved . . . that age discrimination/Disparate treatment through the BUT/FOR Test did
occur during May and June 2020. . . . 	Mr. Warrington is a Pro Se Litigant and believes
the question of whether he was discriminated against by DHS/TSA was answered on
June 30th, 2020, therefore if true, why has Mr. Warrington had to appeal to the US District
Court of Colorado?”)]. In addition, after Defendants filed their Motion to Dismiss, Plaintiff
filed a motion requesting that Defendants “[p]roduce and permit plaintiff to enter into
evidence” documents purportedly produced or generated during, or related to, the
administrative proceeding. 	[Doc. 41 at 1]. 	Judge Neureiter denied Plaintiff’s request,
explaining that discovery was not yet permitted under Rule 26(d), see [Doc. 50 at 3]; see
also Fed. R. Civ. P. 26(d)(1) (“A party may not seek discovery from any source before the
parties have conferred as required by Rule 26(f), except in a proceeding exempted from
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initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation,
or by court order.”), and Plaintiff did not object to Judge Neureiter’s ruling pursuant to
Rule 72. 	Therefore, to the extent Plaintiff’s objection can be construed as challenging
Judge Neureiter’s denial of Plaintiff’s motion for early discovery, that objection is
OVERRULED as untimely. See Fed. R. Civ. P. 72(a) (objections to orders ruling on non-
dispositive matters due 14 days after service).
To the extent Plaintiff argues that Judge Neureiter should have considered
extraneous documents (that do not appear to be in the case record and that Plaintiff
suggests he himself does not have) in ruling on the Motion to Dismiss, or should have
deferred ruling on the Motion to Dismiss until Plaintiff had a chance to take discovery, the
Court is respectfully unpersuaded by this argument. A motion to dismiss challenges the
sufficiency of the allegations in the complaint—not the merits of the plaintiff’s claims. See
Toney v. Berkebile, No. 13-cv-00111-RM-NYW, 2015 WL 1217680, at *5 (D. Colo. Mar.
13, 	2015) 	(explaining 	that 	a 	motion 	to 	dismiss 	“addresses 	the 	adequacy 	of 	the
allegations . . ., not the sufficiency of latter developed evidence”). 	It follows that “in
determining whether to grant a motion to dismiss, the district court . . . [is] limited to
assessing the legal sufficiency of the allegations contained within the four corners of the
complaint.” Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995); see also Rosenfield v.
HSBC Bank, USA, 681 F.3d 1172, 1189 (10th Cir. 2012).2 	And because a court’s
determination on a motion to dismiss is based solely on the allegations in the complaint,
2 A court may consider extraneous documents if they are referenced in the complaint,
central to the plaintiff’s claims, and no party disputes the documents’ authenticity.
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir. 2002). This exception to the
general rule does not apply here, given that Plaintiff does not direct the Court to any
extraneous documents contained in the case record that he wants the Court to consider.
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courts routinely—and properly—rule on motions to dismiss prior to the commencement
of, or during, discovery. Therefore, it was proper for Judge Neureiter to only consider the
four corners of the Amended Complaint in issuing his Recommendation, and Plaintiff’s
arguments relitigating the underlying administrative proceedings or emphasizing what he
perceives to be the merits of his claims do not demonstrate error.3 Plaintiff’s objections
are respectfully OVERRULED.
B. 	Personal Jurisdiction
Next, Plaintiff objects to Judge Neureiter’s conclusion that the Court lacks personal
jurisdiction over Secretary Mayorkas and Administrator Pekoske. 	[Doc. 81 at 3]. 	In his
response to Defendants’ Motion to Dismiss, Plaintiff argued that the Court has personal
jurisdiction over the Individual Defendants because “every individual Warrington will be
asserting as part of this Age Discrimination/Disparate Treatment claim were DHS/TSA
employees and within [his] chain of command,” such that “the United States and Its
Agencies, Officers, or Employees can be sued in an Official Capacity and Sued in an
Individual Capacity in the Denver District Court.” [Doc. 54 at 2]. In the Recommendation,
Judge Neureiter recommends that the claims against the Individual Defendants be
dismissed for lack of personal jurisdiction, reasoning that Secretary Mayorkas’s and
3 Plaintiff also appears to argue that (1) the DHS/TSA investigator “was never a neutral
party” and that (2) DHS and TSA are withholding documents from Plaintiff. 	[Doc. 81 at
2]. 	But Plaintiff’s claims do not appear to be based on these types of allegations, see
generally [Doc. 11; Doc. 11-1], and these arguments are not directed to Judge Neureiter’s
Recommendation. 	Accordingly, the Court does not address these arguments. 	See
Wilson v. Jenks, No. 12-cv-02495-RM-KMT, 2014 WL 6515336, at *4 (D. Colo. Nov. 20,
2014) (“Plaintiff cannot amend his Complaint through filings in opposition to Defendants’
motions to dismiss or through objections in opposition to the Recommendation.”); Saleh
v. Silco Oil Co., No. 19-cv-02973-PAB-NRN, 2020 WL 4915604, at *3 (D. Colo. Aug. 20,
2020) (“In objecting to the magistrate judge’s recommendation, [a party] must raise
specific arguments addressing purported errors in the recommendation.”).
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Administrator Pekoske’s broad supervisory authority over their federal agencies is
insufficient to confer personal jurisdiction over these Defendants individually. [Doc. 77 at
9–10].
In his objections, Plaintiff reframes his initial argument a bit, still asserting that the
Court has personal jurisdiction over the Individual Defendants because they were at the
top of Plaintiff’s “chain of command,” but newly arguing that each Individual Defendant
has designated certain Colorado-based employees as their agents, which renders each
liable for the actions of his agents under the theory of vicarious liability. 	[Doc. 81 at 3–
4].4
Plaintiff did not raise this agency theory or vicarious liability theory in support of
personal jurisdiction in his response to the Motion to Dismiss. 	See [Doc. 54]. 	“In this
circuit, 	theories 	raised 	for 	the 	first 	time 	in 	objections 	to 	the 	magistrate 	judge’s
[recommendation] are deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1031
(10th Cir. 2001); see also NYW Civ. Practice Standard 72.3(b) (“[T]his Court disfavors the
consideration of arguments . . . not made to the Magistrate Judge. Should the objecting
party seek to make arguments or introduce exhibits that were not raised before the
Magistrate Judge, such party must expressly identify those arguments . . . and explain
why such omitted arguments . . . should be considered, in the first instance, upon
Objection.”). 	Accordingly, 	Plaintiff’s 	argument 	is 	not 	properly 	before 	the 	Court.
Furthermore, vicarious or supervisory liability is not available for Plaintiff’s claims against
the Individual Defendants. 	See, e.g., Iqbal, 556 U.S. at 676 (“[V]icarious liability is
4 	Plaintiff 	again 	raises 	allegations 	and 	arguments 	about 	the 	sufficiency 	of 	the
administrative proceeding. [Doc. 81 at 4–6]. For the reasons explained above, the Court
does not consider these arguments.
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inapplicable to Bivens . . . suits.”); Kahler v. Leggitt, No. 18-cv-03162-WJM-KMT, 2019
WL 3928622, at *4 (D. Colo. Aug. 20, 2019) (“[T]he ADEA preclude[s] personal capacity
suits against individual supervisory employees, as they are not considered ‘employers’
under the . . . statute[].”); see also Fuller v. Dep’t of Child. & Fams., 805 F. App’x 601,
605 (10th Cir. 2020) (finding no error in district court’s conclusion that “the ADEA permits
suit only against employers and not against supervisory employees”).
Accordingly, Plaintiff has not identified any error in Judge Neureiter’s conclusion
that the Court lacks personal jurisdiction over Secretary Mayorkas or Administrator
Pekoske. This objection is OVERRULED.
C. 	Sovereign Immunity
Judge Neureiter concluded in his Recommendation that the Agency Defendants
are entitled to sovereign immunity against Plaintiff’s due process claims, to the extent he
seeks money damages, because the government has not waived sovereign immunity
with respect to these claims. [Doc. 77 at 12–13]. Plaintiff takes issue with this portion of
the Recommendation, arguing that Congress has waived the government’s sovereign
immunity through the Administrative Procedure Act (“APA”), the Federal Tort Claims Act
(“FTCA”), the Tucker Act, and the Fair Credit Reporting Act (“FCRA”). [Doc. 81 at 7].
“The United States, as sovereign, is immune from suit unless it waives its
sovereign immunity and consents to be sued.” Harrell v. United States, 443 F.3d 1231,
1234 (10th Cir. 2006). 	Absent express waiver, federal courts lack subject matter
jurisdiction over claims asserted against the United States. 	Id.; see also Normandy
Apartments, Ltd. v. U.S. Dep’t of Hous. & Urb. Dev., 554 F.3d 1290, 1295 (10th Cir. 2009)
(“The defense of sovereign immunity is jurisdictional in nature.”).
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Plaintiff’s argument that the federal government waived sovereign immunity
through the APA, the FTCA, the FCRA, or the Tucker Act was not raised in his response
to the Motion to Dismiss and is therefore waived. 	Garfinkle, 261 F.3d at 1031. 	And in
any event, the statutes cited by Plaintiff do not demonstrate waiver of immunity.
The APA provides that “[a]n action in a court of the United States seeking relief
other than money damages . . . shall not be dismissed nor relief therein be denied on the
ground that it is against the United States.” 5 U.S.C. § 702 (emphasis added). Thus, the
APA does not provide an immunity waiver for Plaintiff’s due process claims for money
damages. 	And the FTCA “waives sovereign immunity for certain state law tort claims
against the United States,” Garling v. EPA, 849 F.3d 1289, 1294 (10th Cir. 2017),
including “claims . . . for money damages . . . for injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment,” 28 U.S.C.
§ 1346(b)(1). 	It does not contain a waiver for Plaintiff’s substantive or procedural due
process claims. 	Cf. Coulibaly v. Kerry, 213 F. Supp. 3d 93, 126 n.25 (D.D.C. 2016)
(“[C]onstitutional tort claims cannot proceed under the FTCA, because the FTCA’s
[waiver] of sovereign immunity does not extend to constitutional tort claims.”).
Moving on, while the United States Supreme Court recently decided that the FCRA
waives sovereign immunity, see Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz, 601
U.S. 42, 50 (2024), this waiver only permits a consumer to “sue ‘any’ federal agency for
defying the law’s terms,” id. at 64. 	In other words, the FCRA does not waive the
government’s sovereign immunity against constitutional claims. 	And finally, the Tucker
Act provides a cause of action to challenge a bid or proposal for a proposed contract, the
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award of a contract, or “any alleged violation of statute or regulation in connection with a
procurement or a proposed procurement.” 28 U.S.C. § 1491(b)(1). “The Tucker Act, in
other words. . . grants consent to be sued for violations of statutes or regulations ‘in
connection with’ a ‘procurement or proposed procurement.’” Colo. Bldg. & Const. Trades
Council v. U.S. Dep’t of Def., No. 12-cv-00632-JLK, 2012 WL 3609824, at *2 (D. Colo.
Aug. 22, 2012). 	Plaintiff does not explain how this statute applies to his due process
claims, and the Court cannot conclude that it does. For these reasons, Plaintiff’s objection
is OVERRULED.
D. 	Failure to State a Claim
Plaintiff also objects to Judge Neureiter’s determination that all of Plaintiff’s claims
should be dismissed for failure to state a claim. First, he repeats his arguments about a
lack of discovery, asserting that “without allowing plaintiff to get to discovery [Judge
Neureiter] cannot make an informed decision on this case.” [Doc. 81 at 7]. This argument
has been addressed above and the Court’s ruling will not be repeated here; instead, the
Court focuses on Plaintiff’s more specific arguments about the strength of his allegations.
1. 	Procedural Due Process Claim
To determine whether a plaintiff has alleged a plausible procedural due process
violation, courts “undertake [a] familiar ‘two-step’ inquiry.” 	M.A.K. Inv. Grp., LLC v. City
of Glendale, 897 F.3d 1303, 1308 (10th Cir. 2018). 	First, the court asks whether the
defendant’s actions deprived the plaintiff of a constitutionally protected interest. Id. If the
answer to that question is yes, the court then considers whether the plaintiff was afforded
the appropriate level of process. 	Id. 	As Judge Neureiter recognized, a plaintiff must
plausibly allege the existence of a protected property or liberty interest in order to state a
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procedural due process claim. 	Martin Marietta Materials, Inc. v. Kan. Dep’t of Transp.,
810 F.3d 1161, 1172 (10th Cir. 2016); see also [Doc. 77 at 14].
Judge Neureiter concluded that Plaintiff has not identified a constitutionally
protected interest for purposes of this claim, recognizing that whether a person’s
employment constitutes a protected property interest “depends on the nature of his
employment.” [Doc. 77 at 14]. Employees with tenure, an express or implied employment
contract, or protections under state law may possess a property interest in public
employment, while at-will employees do not. [Id.]; see also Darr v. Town of Telluride, 495
F.3d 1243, 1251–52 (10th Cir. 2007). 	Judge Neureiter concluded that Plaintiff cannot
state a procedural due process claim based on a property interest in his employment with
TSA because Plaintiff “does not allege that his employment . . . was anything other than
at-will.” [Doc. 77 at 14].
Plaintiff takes issue with this statement, asserting that federal employees “are NOT
at-will employees. Every federal employee receives due process rights . . . and may be
fired only for cause.” [Doc. 81 at 8]. As a preliminary matter, Defendants argued in their
Motion to Dismiss that Plaintiff could not plausibly allege a due process claim because he
“ha[d] not alleged that he is anything other than an at-will employee,” [Doc. 37 at 13], and
Plaintiff did not directly challenge this argument in his response, see [Doc. 54 at 3–4],
which means that his belated argument here is waived, Garfinkle, 261 F.3d at 1031.
Moreover, Plaintiff ignores that Judge Neureiter’s statement is based on the facts alleged
(or not alleged) in the Amended Complaint. 	Although Plaintiff alleges that he “had a
property interest and right in his job,” [Doc. 11-1 at ¶ 45], this unsupported statement is a
legal conclusion that need not be accepted as true, see Wyoming v. U.S. Dep’t of Interior,
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839 F.3d 938, 942 (10th Cir. 2016) (courts take well-pleaded factual allegations as true,
but do not accept the nonmoving party’s legal conclusions as true). Indeed, Plaintiff does
not make express allegations about the nature of his employment and does not otherwise
identify the source of his property interest. See [Doc. 11; Doc. 11-1]. It was not error for
Judge Neureiter to base his conclusion on the facts alleged in the Amended Complaint.
Furthermore, Judge Neureiter stated in his Recommendation that even if Plaintiff
had adequately alleged a constitutionally protected interest, he failed to allege facts
showing that he received inadequate process. 	[Doc. 77 at 14–15]. 	Plaintiff does not
clearly object to this portion of the Recommendation or Judge Neureiter’s analysis, see
[Doc. 81 at 7–8], which provides an independent basis for dismissal of the procedural due
process claim, M.A.K. Inv. Grp., 897 F.3d at 1308. 	Accordingly, Plaintiff’s objection is
OVERRULED.
2. 	Substantive Due Process Claim
“[T]he touchstone of due process is protection of the individual against arbitrary
action of government.” 	Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998)
(quotation omitted). 	“[T]he Supreme Court recognizes two types of substantive due
process claims: 	(1) claims that the government has infringed a ‘fundamental’ right, . . .
and (2) claims that government action deprived a person of life, liberty, or property in a
manner so arbitrary it shocks the judicial conscience.” Doe v. Woodard, 912 F.3d 1278,
1300 (10th Cir. 2019) (citing Washington v. Glucksberg, 521 U.S. 702, 721–22 (1997),
and Lewis, 523 U.S. at 846). Judge Neureiter analyzed Plaintiff’s claim under the “shocks
the conscience” test, see [Doc. 77 at 15–16], and no Party has objected to this approach.
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Judge Neureiter recommends that Plaintiff’s substantive due process claim be
dismissed under Rule 12(b)(6) because (1) Plaintiff has not adequately alleged a
constitutionally protected interest, as discussed above, and (2) Plaintiff has not alleged
government action that shocks the conscience. 	[Id. at 15]. 	In his objections, Plaintiff
asserts:
The Plaintiff’s substantive due process was violated the day the DHS/TSA
Investigator made a more likely than not determination and submitted it to
the EEOC’s Federal Operations. 	The plaintiff from this point on never
received a dismissal and right to sue letter or a letter of determination or
offer of reconciliation.
[Doc. 81 at 7]. 	However, these assertions are not clearly connected to any of the
allegations in the Amended Complaint, compare [id.], with [Doc. 11-1 at ¶¶ 38–41], and
Plaintiff cannot amend his pleading by raising new allegations or theories in his
objections, see Wilson v. Jenks, No. 12-cv-02495-RM-KMT, 2014 WL 6515336, at *4 (D.
Colo. Nov. 20, 2014). Moreover, because Plaintiff does not identify any specific error in
Judge Neureiter’s conclusion that Plaintiff failed to allege conscious-shocking conduct,
his objection is insufficient to warrant de novo review. One Parcel of Real Prop., 73 F.3d
at 1059–60; Saleh v. Silco Oil Co., No. 19-cv-02973-PAB-NRN, 2020 WL 4915604, at *3
(D. Colo. Aug. 20, 2020).
The Court finds no error in Judge Neureiter’s analysis or conclusion and agrees
that the Amended Complaint does not sufficiently allege conscience-shocking conduct,
i.e., conduct that is “egregious and outrageous,” Est. of Carrigan v. Park Cnty. Sheriff’s
Off., 381 F. Supp. 3d 1316, 1326 (D. Colo. 2019), or conduct that shows an arbitrary
abuse of authority or authority “employed . . . as an instrument of oppression,” Hernandez
v. Ridley, 734 F.3d 1254, 1261 (10th Cir. 2013) (cleaned up). 	To the extent Plaintiff
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objects to Judge Neureiter’s recommendation to dismiss the substantive due process
claim, this objection is OVERRULED.
3. 	ADEA Claim
Finally, Mr. Warrington objects to Judge Neureiter’s recommendation that the
Court dismiss Plaintiff’s ADEA claim. [Doc. 81 at 9].
The ADEA “provides (with just a few exceptions) that ‘personnel actions’ affecting
individuals aged 40 and older ‘shall be made free from any discrimination based on age.’”
Babb v. Wilkie, 589 U.S. 399, 402 (2020) (quoting 29 U.S.C. § 633a(a)). 	As Judge
Neureiter 	states 	in 	his 	Recommendation, 	the 	McDonnell 	Douglas 	burden-shifting
framework applies in ADEA cases. 	Frappied v. Affinity Gaming Black Hawk, LLC, 966
F.3d 1038, 1056 (10th Cir. 2020) (summary judgment case) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)). This framework has three parts: first, the plaintiff
must establish a prima facie discrimination case; second, if the plaintiff meets this burden,
the burden shifts to the defendant to identify a non-discriminatory basis for the adverse
employment action; and third, if the defendant makes that showing, the burden shifts back
to the plaintiff to show that the defendant’s stated reason was pretextual. Id.
However, the requirement to establish a prima facie case “is an evidentiary
standard, not a pleading requirement.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510
(2002); see also Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (“[T]he
12(b)(6) standard does not require that [the p]laintiff establish a prima facie case in her
complaint.”). Similarly, at the motion-to-dismiss stage, “a plaintiff is not required to meet
the McDonnell Douglas burden-shifting framework.” Adenowo v. Denver Pub. Schs., No.
14-cv-02723-RM-MEH, 2015 WL 4511924, at *3 (D. Colo. June 17, 2015), report and
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recommendation adopted, 2015 WL 4504931 (D. Colo. July 24, 2015). The elements of
a prima facie case, however, nevertheless “help to determine whether [the p]laintiff has
set forth a plausible claim.” 	Khalik, 671 F.3d at 1192. 	Relevant here, “[i]n termination
cases, the elements of a prima facie age discrimination case are typically that the plaintiff
was (1) within the protected class of individuals 40 or older; (2) performing satisfactory
work; (3) terminated from employment; and (4) replaced by a younger person, although
not necessarily one less than 40 years of age.” Frappied, 966 F.3d at 1056.
Judge Neureiter recommends that Plaintiff’s ADEA claim be dismissed for failure
to state a claim. 	[Doc. 77 at 22]. 	First, he notes Plaintiff’s allegations concerning the
nature of his employment and termination and concludes that “Plaintiff has arguably
alleged a prima facie case.” 	[Id. at 18–19]. 	Then, employing the McDonnell Douglas
burden-shifting framework, he explains that Plaintiff’s own allegations establish a non-
discriminatory reason why Plaintiff’s employment was terminated: 	the harassment
allegation. [Id. at 19]. Judge Neureiter then reasons that this “should put the onus back
on the Plaintiff to at least allege some facts that would establish (or at least make
plausible) that the TSA’s claimed basis for the termination was but a pretext for age
discrimination.” 	[Id.]. Judge Neureiter then concludes that Plaintiff failed to allege non-
conclusory facts plausibly establishing pretext. [Id. at 19–20].
Plaintiff objects to Judge Neureiter’s conclusion. He asserts that he “was found to
have been discriminated against by the DHS/TSA office of Civil Rights and investigator
Mrs. Arterberry on June 30th 2020.” 	[Doc. 81 at 9].5 	He also contends that “[t]he
5 Defendants respond to this argument by asserting that “the EEO investigator did not
make any findings about unlawful discrimination, and such findings are beyond the scope
of the EEO investigator’s work. 	Instead, Plaintiff misreads the EEO investigator’s
recitation of the prima facie elements of age discrimination as a ‘finding’ that age
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BUT/FOR test in this lawsuit is easily seen as long as those in charge to investigate the
facts read ROI, F7 and F9 (when has a satisfactory employee, over the age of 40, and
suffered an adverse employment action with no real basis for their firing ever not met the
burden of proof regarding age discrimination?).” [Id.].
To be sure, Plaintiff’s objection is not a model of clarity. 	However, Plaintiff’s
objection 	does 	establish 	his 	opposition 	to 	Judge 	Neureiter’s 	conclusion 	that 	his
allegations are sufficient to state an ADEA discrimination claim. And even absent a clear
objection, the Court is permitted to review the Recommendation under any standard it
deems appropriate, including de novo review. 	Summers v. Utah, 927 F.2d 1165, 1167
(10th Cir. 1991).
The Court respectfully disagrees with Judge Neureiter’s conclusion with respect to
Plaintiff’s ADEA claim. 	Because the McDonnell Douglas framework is not a pleading
standard, but an evidentiary one, the Court declines to apply it here—at the pleading
stage and prior to the commencement of discovery. See Swierkiewicz, 534 U.S. at 510;
Adenowo, 2015 WL 4511924, at *3. In the Court’s view, moving to the second step in the
McDonnell Douglas framework and considering whether there was a non-discriminatory
basis for Plaintiff’s termination would contravene the Court’s obligation to construe the
well-pleaded facts—including Plaintiff’s allegations suggesting that the basis for his
termination 	(the 	alleged 	harassment) 	was 	not 	legitimate 	because 	no 	harassment
occurred, see, e.g., [Doc. 11 at ¶¶ 9, 14]—in Plaintiff’s favor. 	See Scribner v. Durango
Coca-Cola Bottling Co., No. 23-cv-01263-NYW-KAS, 2023 WL 7003492, at *6 (D. Colo.
discrimination occurred in his case.” 	[Doc. 82 at 10]. 	However, the underlying
investigation documents are not part of the record in this case and cannot be considered
in ruling on the Motion to Dismiss or Plaintiff’s objections. Jojola, 55 F.3d at 494.
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Oct. 24, 2023) (this Court rejecting an employer’s argument that a former employee’s
ADEA claim should be dismissed because the employer could articulate a legitimate, non-
discriminatory basis for the termination and explaining that “accepting this argument
would require the Court to not only construe [the employee’s] allegations and the
reasonable inferences drawn therefrom in [the employer’s] favor, but to also jump ahead
to the second step in the burden-shifting evidentiary McDonnell Douglas framework”).
This Court has previously recognized that “[a] number of courts in this District have
held that allegations that the plaintiff was terminated and replaced by a younger employee
are sufficient, at the pleading stage, to give rise to an inference of age discrimination.” Id.
at *5 (collecting cases). 	Here, Plaintiff alleges slightly more: 	he alleges that (1) he “is
over 40 and is in the age category protected under the ADEA,” [Doc. 11-1 at ¶ 27]; (2) his
job performance was “excellent” and he had “received favorable performance reviews . . .
throughout the five and a half years of his employment,” [Doc. 11 at ¶ 2]; (3) he always
performed all essential functions of his job and was qualified to perform all of the functions
of his job, [Doc. 11-1 at ¶ 28]; (4) he was terminated from his employment, [Doc. 11 at
¶ 17]; and (5) he was replaced by someone younger than 40 years of age, [Doc. 11-1 at
¶ 30]. 	At this stage of the proceedings, and construing the allegations liberally and in
Plaintiff’s favor, the Court finds these allegations sufficient to state an ADEA claim “that
is plausible on its face.” Iqbal, 556 U.S. at 678; Scribner, 2023 WL 7003492, at *6. As a
result, the Court respectfully declines to adopt Judge Neureiter’s Recommendation
insofar as it recommends dismissal of Plaintiff’s ADEA claim and will therefore SUSTAIN
Plaintiff’s objection with respect to this claim.
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II. 	The Motion for Summary Judgment
In light of his conclusion that Plaintiff’s claims should be dismissed, Judge
Neureiter recommends that Plaintiff’s Motion for Summary Judgment be denied. [Doc. 77
at 23]. No Party has objected to this portion of the Recommendation.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. Summers, 927 F.2d at 1167;
see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress
intended to require district court review of a [magistrate judge’s] factual or legal
conclusions, under a de novo or any other standard, when neither party objects to those
findings.”). 	The Court has reviewed this portion of the Recommendation to satisfy itself
that there is “no clear error on the face of the record.”6 	Fed. R. Civ. P. 72(b) advisory
committee’s note to 1983 amendment. 	The Court agrees with Judge Neureiter that the
Motion for Summary Judgment should be denied, given that discovery has not yet
commenced in this case and there is no basis to enter judgment in favor of any Party.
This portion of the Recommendation is therefore ADOPTED.
CONCLUSION
For the above reasons, IT IS ORDERED that:
(1) 	Plaintiff’s objections [Doc. 81] are SUSTAINED in part and OVERRULED
in part;
(2) 	The Report and Recommendation on Defendants’ Motion to Dismiss and
Plaintiff’s Motion for Summary Judgment [Doc. 77] is ADOPTED in part;
6 This standard of review is something less than a “clearly erroneous or . . . contrary to
law” standard of review, Fed. R. Civ. P. 72(a), which in turn is less than a de novo review,
Fed. R. Civ. P. 72(b).
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(3) 	Defendants’ Motion to Dismiss [Doc. 37] is GRANTED in part and DENIED
in part;
(4) 	Plaintiff’s claims against the Individual Defendants are DISMISSED without
prejudice, and Defendants Mayorkas and Pekoske are DISMISSED from
this case;
(5) 	Plaintiff’s due process claims are DISMISSED without prejudice;
(6) 	Plaintiff’s Motion for Summary Judgment [Doc. 64] is DENIED;
(7) 	A copy of this Order shall be sent to:
Scott Thomas Warrington
1635 Foxfire Road
Bayfield, CO 81122
DATED: September 20, 2024 	BY THE COURT:
_________________________
Nina Y. Wang
United States District Judge
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