Eguakun v. Gutso, Inc.

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:23-cv-01713-SKC-STV
BRITTNEY VICTORIA EGUAKUN,
Plaintiff,
v.
GUTSO, INC.,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION RE:
MOTION TO DISMISS (DKT. 40)
Now before the Court is the Recommendation of Magistrate Judge Scott T.
Varholak. The Recommendation suggests the undersigned grant Defendant Gutso,
Inc.’s Motion to Dismiss (MTD) (Dkt. 23) and dismiss, without prejudice, Plaintiff
Brittney Victoria Eguakun’s Complaint (Dkt. 1) because she fails to plead factual
allegations that support each of the elements of her claims. Dkt. 40, pp.15-24. The
Recommendation 	goes 	on 	to 	propose, 	if 	the 	Court 	affirms 	and 	adopts 	the
Recommendation, the undersigned further grant Plaintiff 21 days from the entry of
the Court’s order for Plaintiff to file an amended complaint that cures the deficiencies
identified in the Recommendation. Id. at p.24.
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As explained below, because the Court has satisfied itself that there is no clear
error 	on 	the 	face 	of 	the 	record, 	the 	Court 	AFFIRMS 	and 	ADOPTS 	the
Recommendation, including the recommendation that the Court grant Plaintiff 21
days from today in which to file an amended complaint. The Recommendation is
incorporated herein.
BACKGROUND
This action centers around various claims brought by Plaintiff related to her
employment by Defendant. See generally Dkt. 1. Construing her Complaint liberally
because she is a pro se party, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991) (citation omitted), Judge Varholak discerned the following claims from her
Complaint: (1) a racial discrimination claim under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e et seq.; (2) sex discrimination under Title VII; (3) a
retaliation claim under Title VII; and (4) a failure to accommodate under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Dkt. 40, p.6.
Defendant filed its MTD arguing all of Plaintiff’s claims should be dismissed
for failing to timely file this lawsuit, to exhaust her administrative remedies, and to
make sufficient factual allegations to plead the elements of each of her claims. Id. at
pp.7-8. Plaintiff filed her Response (Dkt. 29), which included many additional facts
that Judge Varholak could not consider when ruling upon the MTD. And Defendant
filed its Reply. Dkt. 30. Judge Varholak issued his Recommendation on May 15, 2024.
Dkt. 40.
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FINDINGS AND ORDERS
The Recommendation advised the parties they had 14 days after service of the
Recommendation to serve and file specific written objections to it for this Court’s
consideration, citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). No party filed
objections. As a result, they have waived de novo review of the Recommendation by
this Court. Thomas v. Arn, 474 U.S. 140, 148-53 (1985).
When no party files objections, the district court may review a magistrate
judge’s recommendation under any standard it deems fit. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas, 474 U.S. at 150 (“It does not appear
that Congress intended to require district court review of a magistrate’s factual or
legal conclusions, under a de novo or any other standard, when neither party objects
to those findings.”). The Court, therefore, reviews the Recommendation to satisfy
itself that there is “no clear error on the face of the record.” Fed. R. Civ. P. 72(b), 1983
Advisory Committee Notes. This standard of review is something less than a “clearly
erroneous or contrary to law” standard of review, which in turn is less than a de novo
review. See Fed. R. Civ. P. 72(a) and (b).
The Recommendation is detailed and thorough and contains no clear error on
the face of the record. And it correctly applies the law. In it, Judge Varholak astutely
rejects, based upon the allegations of the Complaint and the law, Defendant’s
arguments that the action should be dismissed entirely because Plaintiff allegedly
filed her action two days too late and failed to exhaust her administrative remedies.
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Id. at pp.8-15. He then perceptively construes Plaintiff’s claims liberally, identifies
the elements of those claims, and explains why Plaintiff’s Complaint, as drafted, fails
to allege factual statements that support the elements of her claims. Id. at pp.15-24.
He recommends dismissing all of her claims for failing to state a claim. Id. He further
judiciously noted that Plaintiff’s Response included numerous additional facts, which
he must ignore in context of analyzing the MTD, but which suggested to him that
Plaintiff might be expressing her desire to amend her Complaint. Id. at pp.18-19, 21,
24. He thus recommends the Motion be granted, Plaintiff’s claims be dismissed
without prejudice, and the undersigned provide her with 21 days in which to file an
amended complaint.
As mentioned, this Court has reviewed the Recommendation and the entire
record in this case and finds the Recommendation is well-reasoned and a correct
application of the facts and the law to the circumstances presented. Finding “no clear
error 	on 	the 	face 	of 	the 	record,” 	this 	Court 	AFFIRMS 	and 	ADOPTS 	the
Recommendation and GRANTS the MTD, without prejudice. The Court FURTHER
ORDERS that Plaintiff, if she so desires, may file an amended complaint on or before
August 5, 2024.
DATED: July 15, 2024.
BY THE COURT:
_______________________________
S. Kato Crews
United States District Judge
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