Eguakun v. Gutso, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-01713-SKC-STV
BRITTNEY EGUAKUN,
Plaintiff,
v.
GUSTO, INC.,
Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Scott T. Varholak
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.
I. 	BACKGROUND1
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
1 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
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of onboarding and training new hires, in addition to her regular role.2 [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 also alleges that, throughout her time with the Outbound Sales team, there
was an internal policy of endorsing employees to apply for positions.3 [Id.] At some point
after learning that she would not be endorsed for a promotion, Plaintiff “went and sat at
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”).
2 Plaintiff did not receive a title change or additional compensation for this new
responsibility. [Id. at 1]
3 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]
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[her] desk and focused on [her] work.”4 	[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 1-
2] 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 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.”5 [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.]
4 It is difficult to chronologically place many of Plaintiff’s allegations, as the events
described do not follow any particular order.
5 This employee started the same day as Plaintiff, was not more knowledgeable than
Plaintiff, and had lower metrics. [Id.]
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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,
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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.]
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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
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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)
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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). “[Q]uestions 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’l 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 F. App’x 510, 512 (10th Cir.
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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 “conced[ing] 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
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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
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resubmitted the documents on July 6, and the Complaint was docketed.6 [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)).
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
6 Plaintiff’s assertions appear to be supported by the docket. [##1-2 (blank attachment to
the Complaint); 1-4 (resubmitted attachment)]
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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.”7 	Nat’l 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
7 Defendant only asserts that the 300-day limitation applies to this action. [#23 at 4-6]
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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.
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 F. App’x 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
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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, 20228 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 F. App’x 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 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.”9 	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
8 Defendant calculates this date as September 1, 2021. 	[#23 at 4] 	By the Court’s
calculation, this date is October 1, 2021.
9 The charge does mention failures to promote and ultimate termination. [#4]
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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”).
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.
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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 F. App’x 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”).
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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
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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
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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)
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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
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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.10
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]
10 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 F. App’x 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)).
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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 F. App’x 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.11 	The Complaint merely alleges that Plaintiff suffers from ADHD
and General Anxiety Disorder. 	[#1-1 at 8] 	That alone, however, does not necessarily
11 “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 F. App’x 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]
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constitute a disability for purposes of the ADA. 	See, e.g., Johnson v. Sedgwick Cnty.
Sheriff’s Dep’t, 461 F. App’x 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 F. App’x 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 per se
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 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”
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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.
DATED: May 15, 2024 	BY THE COURT:
s/Scott T. Varholak__________
United States Magistrate Judge
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