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
Amended Complaint [#43] (the “Motion”). 	The Motion has been referred to this Court.
[#44] 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.
I. 	BACKGROUND1
Plaintiff, a black female with attention-deficit/hyperactivity disorder (“ADHD”) and
General Anxiety Disorder, was hired by Defendant Gusto, Inc. (“Gusto”) on August 6,
2018, to join the Inbound Sales team. [#42 at 6, 8, 17] After approximately five months,
1 The facts are drawn from the allegations in Plaintiff’s Amended Complaint [#42], 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)).
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 1 of 18

2
she was given the additional responsibility of training and onboarding new hires, though
this new responsibility did not include a title change or increased compensation. 	[Id. at
6] Plaintiff trained at least ten new hires, all of whom were white males or females. [Id.]
Each of these trainees would eventually be promoted ahead of Plaintiff. [Id.]
In April 2019, Plaintiff’s manager, Charles Benoit, endorsed four white males for
promotion. 	[Id.] 	Mr. Benoit did not endorse Plaintiff despite her qualifications and
contributions. 	[Id.] 	After learning that she was not going to be endorsed for promotion,
Plaintiff sought additional help with sales calls from the supervisor responsible for
teaching the training method the sales team used. [Id.] “In retaliation, [Mr. Benoit] set up
an impromptu 1:1, accused [Plaintiff] of aggressive behavior, and wrote out a Period of
Intense Coaching (“PIC”) plan.” [Id.] After discussing the matter with Plaintiff, however,
Mr. Benoit agreed that there was a miscommunication and decided not to complete the
PIC. [Id.]
Over the next month, Plaintiff and Mr. Benoit had several discussions about
Plaintiff’s potential growth at Gusto. 	[Id.] 	Mr. Benoit reached out to friends in other
organizations to help facilitate a network of opportunities. [Id.] He also proposed a new
role—the Subject Matter Expert (“SME”) role—which he took to the Sales Committee, led
by Kristen Groher. 	[Id. at 6-7] 	The Sales Committee, however, said that they did not
have a need for the SME role. [Id. at 7] The Sales Committee made this determination
despite having previously created a new role for a white, female employee who had
started the same day as Plaintiff. [Id. at 6-7]
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 2 of 18

3
In June 2019, Plaintiff was promoted to the Outbound Sales team. [Id.] That same
month, Gusto created the SME role. [Id. at 7] Gusto selected a white male and a white
female employee, both of whom were hired after Plaintiff, to fill the new SME role. [Id.]
In September 2020, Plaintiff had a call with a verbally abusive customer and
Plaintiff hung up on the customer. [Id.] The customer reported Plaintiff to another sales
representative, who in turn reported the issue to Plaintiff’s manager, Beilin Zia. [Id.] Ms.
Zia met with Plaintiff and told Plaintiff that she had provided incorrect information to the
customer and had handled the matter incorrectly. [Id.] Ms. Zia also told Plaintiff that she
and Ms. Groher believed that Plaintiff had been aggressive on the call and that Ms. Groher
had indicated that Plaintiff had a history of being aggressive. [Id.] Plaintiff disagreed with
both Ms. Zia’s assessment of the call and with the notion that Plaintiff had a history of
aggression. 	[Id.] 	When Plaintiff pressed Ms. Zia for examples of prior aggression, Ms.
Zia was unable to provide any details. [Id.]
That same month, Plaintiff met with Mirissa Pesapane, Gusto’s People Partner,
about Plaintiff’s concerns regarding the lack of upward mobility within Gusto. [Id.] Plaintiff
“expressed that she felt like the ‘Aunt Jemima of the sales team,’ meaning she 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. at 7-8] 	Plaintiff
further explained that she was continuously overlooked for promotions and, when she
asked 	for 	feedback, 	she 	was 	given 	vague 	responses 	lacking 	clear 	guidance 	for
advancement. 	[Id. at 8] 	Ms. Pesapane agreed that improvements were needed within
the sales team, but stated that Plaintiff also had room for improvement. 	[Id.] 	Ms.
Pesapane encouraged Plaintiff to stop accepting extra projects and to instead focus on
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 3 of 18

4
her metrics. 	[Id.] 	Despite informing Plaintiff that she would help Plaintiff prepare for
upcoming roles, after this initial meeting, Ms. Pesapane refused to have subsequent
meetings with Plaintiff. [Id.]
At some point prior to July 2021, Plaintiff discussed her ADHD diagnosis with Ms.
Zia. 	[Id.] 	Ms. Zia had advised Plaintiff to contact the accommodations team and had
provided a portal link for the accommodations team. 	[Id.] 	That link sent Plaintiff to the
wrong portal, and when Plaintiff reached out to Ms. Pesapane for assistance, Ms.
Pesapane did not respond. [Id.] Plaintiff informed Ms. Zia of the problem and, thereafter,
Eula Ernst, a partner on the People Team, reached out to Plaintiff, apologized for the
delay, and agreed to set up a virtual meeting. [Id.]
At some point in 2021, Plaintiff applied for the Customer Experience position. [Id.]
Plaintiff was informed that Gusto was short on sales representatives and, as a result,
Plaintiff could not apply for the Customer Experience position. [Id.] In September 2021,
Plaintiff applied for the Market Development Manager position. 	[Id.] 	Ms. Zia informed
Plaintiff that Ms. Zia’s friend had applied for that role, that her friend had not been a good
fit for that role, and that Plaintiff too was unlikely to be a good fit for that role. 	[Id.] 	Ms.
Zia directed Plaintiff to speak with Ms. Groher, who at the time was the Head of Sales.
[Id.] 	Ms. Groher did not ask Plaintiff for her credentials, but instead told Plaintiff that
Plaintiff needed to love sales, and implied that advancement within Gusto was difficult for
those who did not have a passion for sales. [Id.]
In October 2021, Plaintiff had her accommodations meeting with Ms. Ernst. 	[Id.]
Plaintiff explained how her ADHD affected her work. 	[Id.] 	Plaintiff also discussed her
feelings of discrimination, “where Plaintiff once again described feeling like the ‘Aunt
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 4 of 18

5
Jemima of the sales team.’” [Id.] Plaintiff explained that colleagues she had trained were
being promoted ahead of her.2 [Id. at 9] 	Plaintiff said that she did not feel empowered
by Ms. Zia and explained how Ms. Zia did not provide actionable feedback or relevant
resources for advancement. [Id. at 8] Plaintiff also complained that Ms. Zia consistently
declined 	to 	endorse 	Plaintiff 	for 	open 	positions 	despite 	the 	fact 	that 	supervisor
endorsement was a common requirement at Gusto. 	[Id. at 8-9] 	Ms. Ernst informed
Plaintiff that supervisor endorsement for open positions was not permitted at Gusto. [Id.
at 9] During a follow-up conversation a few weeks later, Ms. Ernst told Plaintiff that Ms.
Ernst would discuss Plaintiff’s issues with Ms. Zia and Ms. Groher, though she promised
not to mention Plaintiff’s name. [Id.]
In November 2021, Plaintiff was transferred to a new sales team led by Moe
Campbell. 	[Id.] 	Mr. Campbell discussed his observations about turnover within the
Outbound Sales team and his idea for creating a lead position on the team. 	[Id.] 	Mr.
Campbell indicated that he was considering Plaintiff for that lead role but that he would
first need to obtain approval from others. 	[Id.] 	Over the next few months, Plaintiff and
Mr. Campbell continued to discuss Plaintiff’s suggested improvements for the Outbound
Sales team and her belief that she was “stuck or trapped” on that team. 	[Id.] 	Mr.
Campbell “expressed eagerness to empower and guide [Plaintiff] to prepare her for future
positions.” [Id.]
On March 23, 2022, Plaintiff was called into a meeting with Mr. Campbell and
Michelle Rich, a member of the Revenue team. 	[Id.] 	Mr. Campbell and Ms. Rich
2 In total, between September 2019 and February 2022, Plaintiff applied for at least ten
positions at Gusto. 	[Id. at 7] 	She was not selected for any of these positions. 	[Id.]
Instead, “[w]hite colleagues with less experience and lower performance metrics were
promoted and given opportunities” that Plaintiff had been denied. [Id. at 11]
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 5 of 18

6
expressed concerns about Plaintiff’s metrics from December 2021 through March 2022.
[Id.] During a meeting with Mr. Campbell five days later, Mr. Campbell informed Plaintiff
that he did not believe Ms. Rich’s concerns would lead to anything significant because
the recent negative metrics were not consistent with Plaintiff’s general performance. [Id.
at 9-10]
Nonetheless, on April 1, 2022, Plaintiff received a calendar invite for a Zoom
meeting with Mr. Campbell. [Id. at 10] Mr. Campbell and Ms. Rich were both present for
the meeting. [Id.] During the meeting, Mr. Campbell “read from a script stating that their
investigation indicated [that Plaintiff’s] metrics from the last four months were manipulated
with malicious intent and violated the Sales Call Policy.” 	[Id.] 	As a result, Gusto
terminated Plaintiff’s employment. [Id.]
Following her termination, Plaintiff sent an email to Ms. Ernst expressing concern
about her termination. [Id.] Ms. Ernst directed Plaintiff to Ms. Rich. [Id.] Plaintiff asked
Ms. Rich for employee records, a written explanation for her termination, and the alleged
Sales Call Policy. 	[Id.] 	Ms. Rich provided partial employee records but did not provide
an official termination letter with the grounds for termination. 	[Id.] 	“After [Plaintiff’s]
termination, [Plaintiff] learned through a mutual friend that [Ms. Zia] had inquired about
[Plaintiff’s] well-being [and] implied that she liked [Plaintiff] and was not the one blocking
her from endorsements and opportunities, suggesting that [Ms. Groher] was responsible.”
[Id. at 15-16]
Plaintiff, proceeding pro se, initiated this action on July 6, 2023. [#1] On May 15,
2024, 	this 	Court 	issued 	a 	Recommendation 	that 	Plaintiff’s 	original 	Complaint 	be
dismissed for failure to state a claim, but that Plaintiff be permitted leave to file an
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 6 of 18

7
Amended Complaint that addressed the deficiencies identified in the Recommendation.
[#40] 	On July 15, 2024, United States District Judge S. Kato Crews adopted that
Recommendation. [#41]
Consistent with Judge Crews’ Order, on August 5, 2024, Plaintiff filed the operative
Amended Complaint. [#42] It asserts four claims: (1) race discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. [id at 11-
12]; (2) sex discrimination in violation of Title VII [id. at 13-14]; (3) retaliation in violation
of Title VII [id. at 15-16]; and (4) failure to accommodate in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. [id. at 17-18]. 	On August 19, 2024,
Defendant filed the instant Motion. [#43] Plaintiff has responded to the Motion [#45] and
Defendant has replied [#48].
II. 	STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (alteration in original)
(quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a
plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 7 of 18

8
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 Plaintiff has
failed to plausibly plead the elements of her claims. [#43] The Court addresses each of
Plaintiff’s claims below.
A. Title VII Discrimination
Plaintiff’s first and second claims assert race (claim one) and sex (claim two)
discrimination in violation of Title VII. 	[#42 at 11-14] 	Title VII creates a cause of action
for discrimination based on an individual’s “race, color, religion, sex, or national origin.”
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 8 of 18

9
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
#42] Plaintiff therefore must rely 	upon 	the 	burden-shifting framework 	set forth in
McDonnell Douglas. To make a prima facie case under that framework, a plaintiff must
show that: (1) she is a member of a protected class; (2) she suffered an adverse
employment action; and (3) the challenged action occurred under circumstances giving
rise to an inference of discrimination. Bennett v. Windstream Commc’ns, Inc., 792 F.3d
1261, 1266 (10th Cir. 2015). If the plaintiff makes this showing, then the employer must
have an opportunity to articulate some legitimate, non-discriminatory reason for its action.
Young, 575 U.S. at 213. If the employer articulates such a reason, then the burden shifts
back to the plaintiff to prove the employer’s proffered reason was pretextual. Id.
“The prima facie case under McDonnell Douglas, however, is an evidentiary
standard, not a pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510
(2002). 	As the Supreme Court explained, “under a notice pleading system, it is not
appropriate to require a plaintiff to plead facts establishing a prima facie case because
the McDonnell Douglas framework does not apply in every employment discrimination
case”—e.g., where a plaintiff is able to produce direct evidence of discrimination. Id. at
511. The Supreme Court further cautioned that “the precise requirements of a prima facie
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 9 of 18

10
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. 	And “[w]hile [s]pecific 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”).
Defendant argues that Plaintiff has failed to plead a prima facie case of race or
sex-based discrimination. [#43 at 6-8] The Court agrees that Plaintiff has failed to allege
facts that could plausibly support a claim of race or sex discrimination. 	Simply put,
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.
For example, Plaintiff lists ten positions that she applied for between September 2019
and February 2022. [#42 at 7] But she does not allege that she was qualified for any of
these positions, nor does she provide any details about the race, gender, or qualifications
of the individuals Gusto chose to hire for these specific positions. [Id.]; see also Simms
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 10 of 18

11
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). 	Instead of providing specifics, Plaintiff
merely makes the conclusory allegation that “[w]hite colleagues with less experience and
lower performance metrics were promoted and given opportunities, while [Plaintiff] was
not.”3 	[#42 at 11] 	But even this allegation does not assert that these white colleagues
were promoted into positions that Plaintiff herself sought.
In one instance, Plaintiff does allege that Gusto had refused to create an SME
position and promote Plaintiff into that position, despite Plaintiff’s manager advocating
such an approach. 	[Id. at 6-7] 	And the fact that Gusto did eventually create two SME
positions and promoted less experienced white employees into those positions could
support an inference of discrimination. [Id. at 7] But, by that point, Plaintiff had already
been promoted to the Outbound Sales team and Plaintiff has not alleged that her
promotion into the Outbound Sales team was less desirable than a promotion into the
SME position. 	[Id.] 	Thus, even these allegations fail to give rise to an inference of
unlawful discrimination in violation of Title VII. 	See Muldrow v. City of St. Louis, 144 S.
3 Plaintiff’s claim of gender discrimination is even less plausible than her claim of race
discrimination, as Plaintiff routinely alleges that Gusto offered various promotions to
females. 	[#42 at 6 (alleging that white males and females whom Plaintiff trained were
promoted); id. at 6-7 (alleging that a new position was created for a white female); id. at
7 (alleging that Gusto selected a white male and a white female to fulfill the SME role)]
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 11 of 18

12
Ct. 967, 974 (2024) (“[Title VII] targets practices that treat[] a person worse because of
sex or other protected trait.” (quotation omitted)).
The only two other positions for which Plaintiff provides any details are the
Customer Experience position and the Market Development Manager position. 	[#42 at
8] 	For the Customer Experience position, Plaintiff was told that she could not apply
because Gusto was short on sales representatives. [Id.] But Plaintiff does not allege that
white or male sales representatives were permitted to apply, or that excluding sales
representatives from the application pool disproportionately affected black or female
employees. [Id.] Thus, there is nothing about Gusto denying Plaintiff the opportunity to
apply for the Customer Experience position that plausibly suggests discrimination.
With respect to the Market Development Manager position, Plaintiff merely alleges
that Ms. Zia told Plaintiff that she did not think Plaintiff would be a good fit because Ms.
Zia’s friend had applied for the position and that friend was not a good fit. 	[Id.] 	But the
Complaint does not provide any details about Ms. Zia’s friend—such as the friend’s
gender or race—that could possibly suggest that race or gender lay behind Ms. Zia’s
belief that her friend and Plaintiff were not a good fit for the position. 	[Id.] 	And Ms.
Groher’s comments suggesting that individuals with a passion for sales make the best
managers likewise fails to suggest in any way that Gusto failed to select Plaintiff for the
Market Development Manager position because of her race or gender. 	[Id.] 	Indeed,
Plaintiff does not allege the race, gender or qualifications of the person Gusto did select
for that role. [Id.]
Thus, Plaintiff has failed to plausibly plead a Title VII discrimination claim, either
based on race or gender. 	Accordingly, the Court respectfully RECOMMENDS that
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 12 of 18

13
Defendant’s Motion to Dismiss be GRANTED to the extent that it seeks dismissal of
Plaintiff’s first and second claims. 	Moreover, because these are the same deficiencies
that this Court has previously identified [#40 at 15-19], and because Plaintiff has failed to
cure the deficiencies in her Amended Complaint, the Court respectfully RECOMMENDS
that these claims be DISMISSED WITH PREJUDICE. 	Tracy v. Stephens, No. 1:21-cv-
00152-TC-CMR, 2023 WL 6627076, at *4 (D. Utah July 21, 2023) (recommending
dismissal with prejudice because the court had identified the same deficiencies previously
and the plaintiff had failed to cure the deficiencies through the amended complaint), report
and recommendation adopted, 2023 WL 6307425 (D. Utah Sept. 28, 2023); see also
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (listing “failure to cure
deficiencies by amendments previously allowed” as a reason to deny a plaintiff leave to
amend her complaint).
B. Title VII Retaliation
Plaintiff’s third claim alleges retaliation in violation of Title VII. [#42 at 15-16] “Title
VII forbids employers from retaliating against employees for opposing any activity that is
unlawful under Title VII.” Fassbender v. Correct Care Sols., LLC, 890 F.3d 875, 890 (10th
Cir. 2018) (quotation omitted). 	“To state a prima facie case of retaliation, [the plaintiff]
must demonstrate that[ ] (1) she engaged in protected opposition to discrimination; (2)
[the defendant] took an adverse employment action against her; and (3) there exists a
causal connection between the protected activity and the adverse action.” Id. (quotation
omitted)
Plaintiff alleges that her termination was in retaliation for the statements she made
to Ms. Ernst during their October 2021 meetings. 	[#42 at 15] 	Assuming that Plaintiff’s
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 13 of 18

14
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 first
shared her concerns with Ms. Ernst occurred in October 2021. [#42 at 8-9, 15] Plaintiff
then had a follow-up meeting later that month during which Ms. Ernst informed Plaintiff
that, while Plaintiff’s name would not be mentioned, Ms. Ernst would discuss Plaintiff’s
concerns with Ms. Zia and Ms. Groher. [Id. at 9, 15] Plaintiff alleges that concerns were
raised regarding 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. at 9-10, 15] Thus, Plaintiff
did not experience any negative action until more than four months after her meetings
with Ms. Ernst.
Under Tenth Circuit precedent, “it is . . . patent that if the adverse action occurs
three months out and beyond from the protected activity, then the action’s timing alone
will not be sufficient to establish the causation element.” 	Conroy v. Vilsack, 707 F.3d
1163, 1181 (10th Cir. 2013). 	Because the gap between Plaintiff’s alleged protected
conduct and the adverse action exceeds this three-month threshold, Plaintiff cannot rely
solely on temporal proximity to establish causation. 	Id. at 1181-83; Jackson-Cobb v.
Sprint United Mgmt., 173 F. Supp. 3d 1139, 1148 (D. Colo. 2016) (citing O’Neal, 237 F.3d
at 1253). And Plaintiff offers no other allegations indicating that her complaints made to
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 14 of 18

15
Ms. Ernst influenced the termination decision. Thus, Plaintiff has failed to plausibly allege
a Title VII retaliation claim.
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.
Moreover, because these are the same deficiencies that this Court has previously
identified [#40 at 19-21], and because Plaintiff has failed to cure the deficiencies in her
Amended 	Complaint, 	the 	Court 	respectfully 	RECOMMENDS 	that 	this 	claim 	be
DISMISSED WITH PREJUDICE. Tracy, 2023 WL 6627076, at *4; see also Frank, 3 F.3d
at 1365.
C. Failure to Accommodate
Plaintiff’s 	fourth 	claim 	alleges 	that 	Gusto 	violated 	the 	ADA 	by 	failing 	to
accommodate Plaintiff’s disability. 	[#42 at 17-18] 	A failure to accommodate claim is
evaluated under “a modified McDonnell Douglas burden-shifting framework.” 	Lincoln v.
BNSF Ry. Co., 900 F.3d 1166, 1204 (10th Cir. 2018). “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)). Here, Plaintiff has failed to
plausibly allege the first and third elements of a failure to accommodate claim, and has
failed to otherwise plead facts from which the Court can plausibly infer that Gusto failed
to accommodate Plaintiff in violation of the ADA.
“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.
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 15 of 18

16
Energy Safety Servs. Inc., 544 F.3d 1121, 1124 (10th Cir. 2008) (quoting 42 U.S.C. §
12102(2)); 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.4 	The Complaint merely alleges that Plaintiff suffers from
ADHD and General Anxiety Disorder. 	[#42 at 17] 	That alone, however, does not
necessarily constitute a disability for purposes of the ADA. 	See, e.g., Johnson v.
Sedgwick Cnty. Sheriff’s Dep’t, 461 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
4 “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 does not allege that she was “regarded as disabled” by Defendant. [#42]
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 16 of 18

17
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.
Similarly, Plaintiff has failed to plausibly allege that she requested a reasonable
accommodation. 	Lincoln, 900 F.3d at 1204. 	Here, Plaintiff alleges that she discussed
her diagnosis with Ms. Zia and that she had an accommodations meeting with Ms. Ernst.
[#42 at 8-9] But Plaintiff does not allege that she 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.
Moreover, because these are the same deficiencies that this Court has previously
identified [#40 at 21-24], and because Plaintiff has failed to cure the deficiencies in her
Amended 	Complaint, 	the 	Court 	respectfully 	RECOMMENDS 	that 	this 	claim 	be
DISMISSED WITH PREJUDICE. Tracy, 2023 WL 6627076, at *4; see also Frank, 3 F.3d
at 1365.
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 17 of 18

18
IV. 	CONCLUSION
For the reasons set forth above, the Court respectfully RECOMMENDS that
Defendant’s Motion to Dismiss [#43] be GRANTED and that Plaintiff’s Complaint be
DISMISSED WITH PREJUDICE.5
DATED: December 6, 2024 	BY THE COURT:
s/Scott T. Varholak__________
United States Magistrate Judge
5 Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of
Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583
(10th Cir. 1995). A general objection that does not put the district court on notice of the
basis for the objection will not preserve the objection for de novo review. 	“[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. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996).
Failure to make timely objections may bar de novo review by the district judge of the
magistrate judge’s proposed findings and recommendations and will result in a waiver of
the right to appeal from a judgment of the district court based on the proposed findings
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (concluding that district court’s decision to review a magistrate judge’s
recommendation de novo despite the lack of an objection does not preclude application
of the “firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc.,
52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate
judge’s order, cross-claimant had waived its right to appeal those portions of the ruling);
Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived
their right to appeal the magistrate judge’s ruling by failing to file objections). 	But see,
Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver
rule does not apply when the interests of justice require review).
Case No. 1:23-cv-01713-SKC-STV Document 49 filed 12/06/24 USDC Colorado
pg 18 of 18