Farrah v. City County of Denver

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-02868-KAS
DIANA L. FARRAH,
Plaintiff,
v.
CITY AND COUNTY OF DENVER,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA
This matter is before the Court on Defendant’s Partial Motion to Dismiss
Plaintiff’s Second Amended Complaint Under Fed. R. Civ. P. 12(b)(6) [#35] (the
“Motion”). Plaintiff filed a Response [#36] in opposition to the Motion [#35], Defendant
filed a Reply [#37], and Plaintiff filed a Surreply [#38], with permission of the Court. Minute
Order [#42] at 2. The Court has reviewed the briefs, the entire case file, and the applicable
law. For the reasons stated below, the Motion [#35] is GRANTED.1 Plaintiff’s Second,
Third, Fourth, Fifth, and Sixth Claims, as well as her FMLA retaliation claim, are
DISMISSED WITHOUT PREJUDICE, but these claims for discrimination or retaliation are
DISMISSED WITH PREJUDICE to the extent that they are based on any discrete act that
predated January 21, 2022. Her First Claim (ADEA - Discrimination) can proceed but only
1 This case has been referred to the undersigned for all purposes pursuant to D.C.COLO.LCivR
40.1(c) and 28 U.S.C. § 636(c), on consent of the parties. See [#25, #26, #34].
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as to Defendant’s alleged failure to promote her to Grant Compliance Manager in March
2022.
I. Background2
Plaintiff Diana Farrah, who proceeds as a pro se litigant,3 brings this lawsuit to
seek redress for alleged race and age discrimination, retaliation, and a hostile work
environment, which she endured as a white employee, over the age of 40, while employed
by Defendant City and County of Denver.
Plaintiff was 65 years old in March 2022. See Second Am. Compl. [#32] at 5. She
worked for Defendant City and County of Denver from March 2013 until her resignation
in October 2022, at which time she was a senior internal auditor. Id. at 7-8; see also
Charge of Discrimination [#35-1] at 1.4 She is a Certified Professional Accountant with 32
2 For the purposes of resolving the Motion [#35], the Court accepts as true all well-pleaded, as
opposed to conclusory, allegations made in Plaintiff’s Second Amended Complaint [#32]. See
Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). However, to the extent that Plaintiff provides additional
allegations or possible new claims in her briefs, the Court notes that a party may not amend her
complaint in motion briefing. See, e.g., Wilson v. Johnson, No. 19-cv-2279-CMA-NRN, 2020 WL
5815915, at *5 (D. Colo. Sept. 30, 2020) (stating that it is “well established that [the] [p]laintiff may
not amend his [c]omplaint by adding factual allegations in response to [the] [d]efendants’ [m]otion
to [d]ismiss”).
3 The Court must liberally construe a pro se litigant’s filings. See Haines v. Kerner, 404 U.S. 519,
520-521 (1972). In doing so, the Court should neither be the pro se litigant’s advocate nor “supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal theory on a
plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). Further, pro se litigants are subject to the same
procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
4 The Court may consider the Charge of Discrimination, which was attached to Defendant’s Motion
[#35], without converting the Motion into one for summary judgment because the Charge was
incorporated by reference in Plaintiff’s Second Amended Complaint [#32]. See Second Am.
Compl. [#32] at 3 (referring to Charge of Discrimination attached to original Complaint [#1] at 35-
36); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (stating that a court may consider
documents attached to or incorporated by reference in a complaint when deciding a Rule 12(b)(6)
motion to dismiss).
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years of audit/compliance experience. Id. at 9, ¶ 1. Initially she worked for Defendant’s
Office of Economic Development Agency (OED), which was split into Housing Stability
(HOST) and Denver Economic Development Opportunity (DEDO) around 2020. Id. at 8.
After the split, Plaintiff worked for HOST. Id. Plaintiff claims that when HOST was created,
“virtually all employees promoted or hired into management positions were young,
inexperienced people” and that Defendant drove off or fired older workers. Id. at 12-13,
¶¶ 25, 31.
Plaintiff alleges that since 2013, she was expected to perform the work of two
people. Id. at 15, ¶ 48. A “Position Justification – Application and Approval Form” was
extended in May 2013 and posted in 2016, but no one was hired. Id., ¶ 49. Earlier in her
tenure, she believes she was “continuously denied opportunities for expansion in
retaliation for using FMLA [Family Medical Leave Act] intermittently from 2016 to 2020 to
care for her father.” Id. at 8.
Around September 2020, Plaintiff was told by the former director, who is African
American, that she would be allowed to work on FEMA grants, which were new to HOST
and DEDO. Id. at 14, ¶ 43. Plaintiff believes this opportunity arose “due to [her] settlement
of a grievance she filed in relation to her salary level and opportunities for development.”
Id. In early 2021, however, the former director informed Plaintiff that she would not be
allowed to work on FEMA grants. Id. at 15, ¶ 45. Instead, a younger African American
woman, Employee D, who is a “cousin of the Finance Director” and a niece of Former
Mayor Webb, was allowed to work on them. Id. at ¶ 46; see also id. at 10, ¶ 6 (identifying
Employee D). Plaintiff did not learn this until March 2023 when she received documents
related to Colorado Civil Rights Division complaint. Id. at 15, ¶ 46. Between 2020 and
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October 2023, “[v]irtually all young employees who had been hired at HOST” were
promoted. Id., ¶ 47.
Plaintiff alleges that she “never received less than satisfactory [ratings] with the
exception of a needs improvement [rating] on one parameter approximately in 2015,” and
she “regularly received compliments for her respect toward co-workers.” Id. at 12, ¶ 21;
see also id. at 14, ¶ 39. In contrast, despite “critical feedback” from customer satisfaction
surveys and agencies, Employee D “received overall satisfactory or above satisfactory
[ratings] for the components in the performance evaluations.” Id. at 13, ¶ 32. Despite not
having prior lending experience, Employee D “was [eventually] promoted to a Fiscal
Administrator I” position at DEDO. Id., ¶ 34. In that position, Employee D received a
detailed employee evaluation with an “Exceeds Expectation” rating from her manager,
who is half African American and half Japanese. Id., ¶ 35. Plaintiff alleges that DEDO
“had a culture that was exceptionally favorable to non-whites and non-US citizens to the
point that the Executive Director bragged about how many different languages from
around the world the employees spoke.” Id. at 14, ¶ 41.
In or around March 2022, Plaintiff applied and interviewed for HOST’s Manager of
Grants and Compliance. Id. at 5; id. at 16-17, ¶¶ 55-62 (describing Plaintiff’s interview);
see also Charge of Discrimination [#35-1] at 1. She alleges that HOST impaneled hostile
interviewers, including a younger white male, “Employee E,” whose hostility arose when
Plaintiff previously attempted to train him. Second Am. Compl. [#32] at 16, ¶¶ 55-57. Even
though Plaintiff met the job requirements, Employee D, a “younger and less experienced”
individual, was hired. Id. at 9-10, ¶¶ 3, 6; see also Charge of Discrimination [#35-1] at 1.
She claims that the whole process was a sham because HOST allegedly had already
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decided whom it wanted to hire. Second Am. Compl. [#32] at 17, ¶¶ 64-66. Plaintiff alleges
that HOST hired Employee D on March 31, 2023, but Plaintiff did not learn her application
was declined until May 2023 and the reasons given were that she was impatient,
struggled in relationships, and lacked soft skills. Id. at 18, ¶¶ 69, 70, 72, 73. Plaintiff avers
that those reasons did not square with her 2014 through 2021 annual performance
reviews, which were positive and did not contain any concerns about communications or
people skills. Id. at 19-20, ¶¶ 75-81. Plaintiff believes that she was denied the promotion
“based on [her] protected classes.” Charge of Discrimination [#35-1] at 1. After Employee
D’s promotion, Plaintiff was “demoted to report to [her],” even though Plaintiff had
previously reported directly to the Finance Director. Second Am Compl. [#32] at 10, ¶ 7;
see also Charge of Discrimination [#35-1] at 2. Plaintiff claims that Defendant “was so
desperate to promote African American applicants, that it overlooked red flags in the
application of Employee D.” Second Am Compl. [#32] at 11, ¶ 12.
Plaintiff also claims that Denver has a practice of “run[ning] off or tak[ing] adverse
action against employees in the 60+ age range” and “regularly promot[ing] inexperienced
employees over older workers with much more experience.” Id. at 20, ¶ 83. As an
example, Plaintiff claims that when she accidentally used a DEDO payroll code,
Employee D “threatened to audit [her]” even though no one had previously threatened
her over occasional coding mistakes. Id. at 20-21, ¶¶ 86-87. Employee D also “would try
to take over” meetings with external auditors, even though Plaintiff was the point of
contact. Id. at 21, ¶ 88.
Plaintiff claims that she and Employee E (the hostile male employee interviewer)
were similarly situated—even though he was with DEDO and she was with HOST—
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because he monitored the same grants Plaintiff had previously monitored for years, and
he had been hired by the person who had supervised Plaintiff for a year before the OED
split into DEDO and HOST. Id. at 23, ¶¶ 100, 101. Additionally, even after the split,
DEDO’s and HOST’s operations overlapped. Id. at 23-24, ¶¶ 102-09. Plaintiff claims that
she and Employee E “perform[ed] the exact same type of tasks for the very same group
of [grant] subrecipients[.]” Id. at 25, ¶ 115. Employee E was 40 years old while Plaintiff
was 64 years old when she filed her grievance. Id., ¶ 117. Though Employee E had a
master’s degree in accounting, he had much less experience than Plaintiff. Id. at 26, ¶¶
118-20. When Plaintiff’s salary was evaluated (and increased from $78,085 to $83,317)
in 	September 	2020, 	Human 	Resources 	concluded 	that 	she 	had 	three 	times 	the
experience of Defendant’s other senior auditors in the mid-range of pay who performed
grant subrecipient monitoring. Id., ¶¶ 121-23.
Around March 2022, Employee E applied for and was promoted to DEDO’s
Director of Administration and Federal Compliance, a position for which Plaintiff did not
apply “because she suspected that Employee E had disparaged her to management at
DEDO such that she wouldn’t even be considered for the position.” Id. at 27, ¶¶ 126, 128.
Plaintiff also claims that she did not apply for the position because the Chief Operating
Officer was hostile to and drove away the finance manager who, like Plaintiff, was “an
older employee.” Id., ¶ 130. Plaintiff asserts that Employee E “was not remotely qualified
for the position of Director of Administration and Federal Compliance,” id., ¶ 132, and she
believes that he was given more training opportunities than she received, Charge of
Discrimination [#35-1] at 2 (alleging that she was “excluded from meetings, training
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sessions, and career development opportunities that a similarly situated male coworker
was allowed to attend”).
Plaintiff next alleges that she received significantly more work than Employee E,
and that the workload caused her to fall behind in her duties since 2017. Id. at 27-28, ¶¶
133-34. Employee E was allegedly allowed to hire one additional staff member, which
further reduced Employee E’s workload, while her workload did not diminish. Id. at 29, ¶¶
144, 146. The former director apparently expected Plaintiff to complete “some 80 fiscal
monitorings involving multiple years and grants by December 2020; this expectation was
physically impossible.” Id. at 28, ¶ 138 (emphasis omitted). Plaintiff and a contract
employee finished most of the monitorings by July 2021 and were “mostly caught up by
December 2021.” Id., ¶ 139. She does not allege that she faced any reprimand or
discipline for failing to complete the monitorings by December 2020.
Finally, 	Plaintiff 	alleges 	that 	her 	employee 	evaluations 	were 	discriminatory
because DEDO’s financial director gave Employee E high praise and “repeatedly lauded
[him] for activities that [Plaintiff] did,” but criticized Plaintiff’s work as “very lacking.” Id., ¶¶
155-60.
Based on these allegations, Plaintiff asserts six claims: (1) violation of the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., Second Am. Compl.
[#32] ¶¶ 198-208; (2) retaliation in violation of the ADEA, id. ¶¶ 209-15; (3) “Race-Based
Discrimination in Employment Decisions and Hostile Work Environment in Violation of the
U.S. Constitution (Equal Protection Clause of the Fourteenth Amendment under §1983),
Section 1981, Title VII, and CADA,” i.e., the Colorado Anti-Discrimination Act, Colo. Rev.
Stat. § 24-34-401 et seq., id. ¶¶ 216-21; (4) “Race-Based Retaliation in Violation of the
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U.S. Constitution (Equal Protection Clause of the Fourteenth Amendment under [42
U.S.C.] § 1983), [42 U.S.C. §] 1981, Title VII, and CADA,” id. ¶¶ 222-25; (5) discrimination
under Title VII of the Civil Rights Act and CADA based on sex and gender, id. ¶¶ 226-30;
and (6) retaliation under Title VII and CADA based on sex and gender, id. ¶¶ 231-35. The
Court also considers Plaintiff’s claim that Defendant retaliated against her for taking FMLA
leave to care for her father from 2016 to 2020, though she did not identify this claim as a
numbered cause of action. Id. at 8.5
Defendant seeks dismissal of all claims except for Plaintiff’s First Claim (ADEA
Discrimination) based on its alleged failure to promote her to the Manager of Grant
Compliance position. See Motion [#35] at 3.
II. Standard of Review
Fed. R. Civ. P. 12(b)(6) permits dismissal of a claim where the plaintiff has “fail[ed]
to state a claim upon which relief can be granted.” The Rule 12(b)(6) standard tests “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). “A
complaint must contain ‘enough facts to state a claim for relief that is plausible on its
face.’” Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 811 (10th
Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While Plaintiff
need not “establish a prima facie case” at the pleading stage, “the elements of each
alleged cause of action help to determine whether [she] has set forth a plausible claim.”
5 Under a section titled “Other Claims for Relief,” Plaintiff states: “Additional claims for relief as
new causes of action were noted in motions related to the incorrectly named party; Plaintiff ran
out of time to add this information.” Second Am. Compl. [#32] at 41, ¶ 236. The Court does not
consider any causes of action which are not actually included in the Second Amended Complaint
[#32].
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Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). “When the complaint
includes ‘well-pleaded allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.’” Carraway v. State
Farm Fire & Cas. Co., No. 22-1370, 2023 WL 5374393, at *4 (10th Cir. Aug. 22, 2023)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
The Court need not accept as true allegations that are conclusory because they
assert 	an 	inference 	“without 	‘stating 	underlying 	facts’ 	or 	including 	‘any 	factual
enhancement.’” Matney v. Barrick Gold of N. Am., 80 F.4th 1136, 1144-45 (10th Cir. 2023)
(quoting Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021)).
III. Analysis
The Court will first address which of Plaintiff’s allegations are conclusory (and
therefore not entitled to the assumption of truth) and which are well-pleaded. See, e.g.,
Khalik, 671 F.3d at 1193-94 (reviewing the plaintiff’s complaint under Rule 12 after
“[s]triking 	[her] 	conclusory 	allegations” 	and 	examining 	the 	remaining 	well-pleaded
allegations). The Court will then address Defendant’s timeliness arguments, which impact
most (but not all) of Plaintiff’s claims. After addressing the timeliness arguments, the Court
will consider Plaintiff’s six claims for relief.
A. 	Conclusory Allegations
A plethora of Plaintiff’s allegations are conclusory because they are unsupported
by facts. Exemplar allegations include:
• 	Defendant was “hostile” to white and older employees;
• 	“Virtually all young employees who had been hired at HOST while [Plaintiff]
was employed were promoted between 2020 and October 2023”;
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• 	The Grant Compliance Manager hiring decision “had been made well before
the position had been posted”;
• 	One of the interviewers for the Grant Compliance Manager position “was also
bigoted 	against 	older 	employees” 	and 	“had 	just 	succeeded 	in 	either
terminating, ‘managing out,’ or running off an older employee prior to the
interview”;
• 	HOST/DEDO have a practice of “run[ning] off or tak[ing] adverse action against
employees in the 60+ age range”;
• 	“From the day [Plaintiff] started with [Denver], employees somewhat older than
her were being driven off”;
• 	Employee D “immediately started bullying [Plaintiff] to drive her from her job”;
• 	Denver “retaliated against Plaintiff for engaging in protected activity by isolating
her, accusing her of insubordination to set her up for termination, and demoting
her”;
• 	Plaintiff’s “terms and conditions of employment were discriminatory compared
to younger and African American employees”;
• 	Denver had a practice of “driv[ing] off older employees by imposing impossible
workload expectations”;
• 	HOST “rejected at least 2 qualified candidates who applied for an Associate
Auditor position, indicating its intention to continue to impose outlandish
productivity requirements on [Plaintiff] to drive her from HOST”;
• 	“Since 	May 	2013, 	Defendant 	engaged 	in 	a 	pattern 	and 	practice 	of
discriminating against individuals who are age 40 or older by knowingly and
intentionally, through its employment practices, treating individuals who are 40
years of age or older adversely and treating individuals who are under the age
of 40 preferentially”;
• 	“Defendant engaged in unwarranted feedback, unwarranted accusations of
insubordination, 	intense 	scrutiny 	of 	Plaintiff, 	disparate 	treatment 	of 	and
isolation of Plaintiff”;
• 	Denver “has a race-based policy for hiring with its efforts to hire anyone but
white candidates if possible”;
• 	Denver “evaluat[ed] black employees leniently”; and
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• 	Plaintiff “was subject to disparate treatment compared to a similarly situated
male”.
See, e.g., Second Am. Compl. [#32], ¶¶ 25, 47, 59, 64, 83, 84, 85, 90, 91, 148, 154, 201,
212, 213, 217, 221, 228.
The identified allegations fall into two categories: those that simply assert the
elements of Plaintiff’s claims and those that lack factual enhancement. The deficiencies
in both categories render them implausible. Cf. Matney, 80 F.4th at 1144-45 (defining
conclusory allegations as those “in which an inference is asserted without ‘stating
underlying facts’ or including ‘any factual enhancement’”)
Omitting those conclusory allegations leaves the Court with the following factual
allegations: (1) from 2013 to 2022, Plaintiff worked for Defendant performing a job that
was intended for two people; (2) from 2014 on, Plaintiff regularly received positive
feedback and reviews despite her very heavy workload; (3) Plaintiff took intermittent time
off under FMLA from 2016 or 2017 to 2020; (4) OED split into HOST (Plaintiff’s employing
agency) and DEDO (Employee D’s and Employee E’s initial employing agency) sometime
in 2020; (5) around September 2020, Plaintiff was told that she would be allowed to work
on FEMA grants, though this work never materialized; (6) unlike other employees,
Plaintiff’s workload rendered her unable to participate in professional development
activities; (7) around March 2022, Plaintiff applied for the Manager of Grants and
Compliance but (8) the interviewing panel seemed disinterested in Plaintiff and promoted
Employee D, a younger African American woman, instead; (9) Employee D was less
qualified than Plaintiff for the position; (10) after Employee D was promoted, Plaintiff
reported to her instead of to the Finance Director; (11) Employee D “threatened to audit”
Plaintiff when she mistakenly used a DEDO payroll code once; (12) Employee D would
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sometimes “hijack” meetings where Plaintiff was the point of contact; (13) Defendant
conducts diversity, equity, and inclusion training for employees; (14) DEDO’s Executive
Director once “bragged about how many different languages from around the world the
employees spoke”; (15) Employee E, a younger white male, applied for and was
promoted to Director of Administration and Federal Compliance, even though he was not
remotely qualified; (16) Plaintiff did not apply for that position because she believed
Employee E had disparaged her to management; and (18) Plaintiff resigned on or about
October 4, 2022. Second Am. Compl. [#32] at 5, 8; id., ¶¶ 41, 43, 45, 48, 61, 69, 76, 86,
88, 126, 128, 132, 220; Charge of Discrimination [#35-1] at 1-2.
B. 	Timeliness
1. 	Filing Periods
Plaintiff filed her Charge of Discrimination [#35-1] with the Colorado Civil Rights
Division (the “CCRD”) on November 17, 2022. See Charge of Discrimination [#35-1] at 2.
Because Plaintiff first filed her charge with CCRD, under Title VII, ADEA, and CADA, only
those acts that occurred 300 days before the November 17, 2022 charge filing date, or
January 21, 2022, are actionable. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 114 (stating in Title VII context that “[a]ll prior discrete discriminatory acts” that fall
outside the 300-day period preceding the charge filing date “are untimely filed and no
longer actionable.”); Almond v. Unified Sch. Dist. No. 501, 665 F.3d 1174, 1176 (10th Cir.
2011) (stating that compliance with ADEA’s similar 300-day limitation period “is a
condition precedent to bringing suit”); COLO. REV . S TAT. § 24-34-403 (requiring charge’s
filing “within three hundred days after the alleged discriminatory or unfair employment
practice occurred”). Here, any alleged discrete discriminatory or retaliatory acts that
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occurred prior to January 21, 2022, are presumptively time-barred under Title VII, ADEA,
and CADA.
For hostile work environment claims, the rule slightly differs. Because these claims
involve “a series of separate acts that collectively constitute ‘one unlawful employment
practice[,]’” some component acts may have occurred outside of the timely filing period,
provided that at least one “act contributing to the claim occurs within the filing period[.]”
Morgan, 536 U.S. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)).
2. 	Accrual and Equitable Tolling
Plaintiff indirectly asks the Court to toll or excuse any untimeliness because “she
was unaware of certain situations that would have given rise to a complaint(s) until she
received [Defendant’s] documents provided during the [CCRD] investigation.” Response
[#36] at 3-4. She claims that Defendant deceived her by repeatedly telling her it was going
to hire new staff and that she would have an opportunity to work on FEMA grants, but
neither representation materialized. Id. There are two problems with Plaintiff’s argument.
First, “a claim accrues when the disputed employment practice—the demotion,
transfer, firing, refusal to hire, or the like—is first announced to the plaintiff.” Almond, 665
F.3d at 1177 (citing Del. State Coll. v. Ricks, 449 U.S. 250 (1980)). Thus, an employee
who learns of “the injury (the adverse employment decision) need not be aware of the
unlawful discriminatory intent behind that act for the limitations clock to start ticking.” Id.
(emphasis in original). Here, Plaintiff may have learned more context behind Defendant’s
treatment of Employee D and Employee E through the CCRD process, but she did not
learn of any new injuries. See, e.g., Charge of Discrimination [#35-1] at 2 (asserting that
“[t]hroughout 	[her] 	employment, 	[Plaintiff] 	was 	subjected 	to 	unequal 	terms 	and
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conditions,” 	including 	exclusion 	from 	meetings, 	training, 	and 	career 	development
opportunities, and that her concerns were “ongoing and unremedied”).
Second, Plaintiff has not shown that equitable tolling is warranted. Courts are not
to disregard “[p]rocedural requirements established by Congress for gaining access to
the federal courts . . . out of vague sympathy for particular litigants.” Baldwin Cnty.
Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984); see also Lozano v. Montoya Alvarez,
572 U.S. 1, 10 (2014) (observing that “the [equitable tolling] doctrine effectively extends
an otherwise discrete limitations period set by Congress” and, therefore, warrants careful
consideration of statutory intent). Thus, courts will exercise their sound discretion to
equitably toll deadlines only in rare circumstances, such as “where [the plaintiff] has
actively pursued [her] judicial remedies by filing a defective pleading during the statutory
period, or where the [plaintiff] has been induced or tricked by [her] adversary’s misconduct
into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96
(1990); see also Arnold v. Air Midwest, Inc., 100 F.3d 857, 861 (10th Cir. 1996) (noting
equitable tolling falls within the court’s sound discretion).
Here, Plaintiff has not shown that she was “actively misled, or has in some
extraordinary way been prevented from asserting . . . her rights[.]” Montoya v. Chao, 296
F.3d 952, 957 (10th Cir. 2002) (internal citation and quotation marks omitted). Even if
Defendant misled Plaintiff into thinking it would hire more employees from 2014 onward
or that it would allow her to work on FEMA grants in 2020, see Second Am. Compl. [#32]
¶¶ 143, 52, Plaintiff does not explain how these acts caused her to wait until November
2022 to file a Charge of Discrimination. In its discretion, the Court finds that equitable
tolling is unwarranted.
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Upon review of Plaintiff’s Second Amended Complaint [#32] and her Charge of
Discrimination [#35-1], the Court identifies four discrete employment incidents that
allegedly occurred during the relevant filing period: (1) in March 2022, she applied for the
Grant Compliance Manager position but learned two months later that Denver had hired
a younger black woman, Employee D; (2) after Employee D’s promotion, Plaintiff began
reporting to her rather than to the Finance Director; (3) around March 2022, a younger
white male employee, Employee E, applied for and was promoted to Director of
Administration and Federal Compliance, a position for which Plaintiff did not apply; (4)
Plaintiff resigned in October 2022, which she frames as a “constructive discharge”. See
Charge of Discrimination [#35-1] at 1-2. Any discrete incidents predating January 2022—
e.g., Plaintiff’s high workload from 2013 to January 20, 2022; Defendant’s failure to hire
another employee from 2014 onward; Defendant’s failure to allocate FEMA grant work to
Plaintiff in 2020; and Defendant’s failure to make professional development activities
available to Plaintiff from 2013 to January 20, 2022—are time-barred and cannot support
a discrimination or retaliation claim, though these events could potentially be cognizable
as part of a hostile work environment claim if they persisted into the 300-day filing period.
See Morgan, 536 U.S. at 117.
C. 	Discrimination Claims
1. 	First Claim (ADEA)
The ADEA renders unlawful adverse actions taken against an employee because
of that employee’s age. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 170 (2009)
(citing 29 U.S.C. § 623(a)). The elements of an ADEA discrimination claim are: (1) “[the
plaintiff] is a member of the class protected by the [ADEA],” i.e., that she was over 40
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years old; (2) “she suffered an adverse employment action”; (3) “she was qualified for the
position at issue”; and (4) “she was treated less favorably than others not in the protected
class.” Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1279 (10th Cir. 2010) (citation
omitted). 	Notably, however, 	“a 	plaintiff need 	not establish 	a prima 	facie 	case 	of
discrimination (or but-for causation) at the pleading stage.” Scribner v. Durango Coca-
Cola Bottling Co., No. 23-cv-01263-NYW-KAS, 2023 WL 7003492, at *4 (D. Colo. Oct.
24, 2023) (citing Khalik, 671 F.3d at 1192) (other citations omitted).
a. 	Grant Compliance Manager Position
The Court first addresses Plaintiff’s unsuccessful application for Grant Compliance
Manager, which position was given to a younger black woman, Employee D. Defendants
acknowledge—and the Court agrees—that Plaintiff has pleaded sufficient facts regarding
its alleged failure to promote her to Manager of Grant Compliance to survive dismissal.
See Motion [#35] at 3. Therefore, this part of Plaintiff’s ADEA claim will be allowed to
proceed to discovery.
b. 	Changed Reporting Structure
Secondly, the Court addresses Plaintiff’s allegation that, following Employee D’s
promotion to Grant Compliance Manager, Plaintiff had to report to Employee D rather
than to the Finance Director.
To allege an “adverse employment action,” a plaintiff must plausibly allege that
“the [action] brought about some ‘disadvantageous’ change in an employment term or
condition.” Muldrow v. City of St. Louis, 601 U.S. 346, 354 (2024) (citing Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). The harm need not be
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significant, but the harm must concern “an identifiable term or condition of employment.”
Id. at 354-55.6
Here, Plaintiff frames her change in supervisor from the Finance Director to the
newly promoted Manager of Grant Compliance Employee D as a demotion, separate and
apart from Defendant’s alleged failure to promote her to that position. However, she does
not explain how this change in reporting constituted a demotion or otherwise caused
some harm. See, e.g., Ellis v. Salt Lake City Corp., 553 F. Supp. 3d 990, 999 (D. Utah
2021) (finding that plaintiff had plausibly alleged discriminatory demotion where she
alleged that “she was adversely affected by the demotion because she lost rank and her
pay was reduced”); Gomez v. Okmulgee Cnty. Crim. Just. Auth., No. 6:22-cv-00322-
RAW-DES, 2023 WL 4999861, at *3 (E.D. Okla. Aug. 4, 2023) (finding that plaintiff had
plausibly stated an “adverse employment action” by alleging that the defendant had
demoted him by reducing his pay); see also Hooks v. Diamond Crystal Specialty Foods,
Inc., 997 F.2d 793, 799 (10th Cir. 1993) (stating that “a reassignment is not a demotion
unless the employee can show that [she] receives less pay, has less responsibility, or is
6 Muldrow abrogated prior case law, including from the Tenth Circuit, which required an
employment discrimination plaintiff to allege “significant” or “material” harm as part of the “adverse
employment action” element. Cf. Muldrow, 601 U.S. at 353 n.1 (abrogating Sanchez v. Denver
Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998)), 355-56 (disapproving of Daniels v. United Parcel
Serv., Inc., 701 F.3d 620, 635 (10th Cir. 2012)). This represented a sea change in what constitutes
an “adverse employment action” in this Circuit. See, e.g., Staton v. DeJoy, No. 23-cv-03223-SBP,
2025 WL 42821, at *8 (D. Colo. Jan. 7, 2025) (stating that post-Muldrow, adverse employment
action “appears to this court to encompass a significantly broader category of actions entitled to
be called ‘adverse’ than previously countenanced by the Tenth Circuit,” but noting that the Tenth
Circuit has not yet offered guidance on “the application of Muldrow’s ‘some harm’ standard”).
However, Muldrow plainly requires a plaintiff to allege some specific harm. Muldrow, 601 U.S. at
354-55 (“To make out a Title VII discrimination claim, a transferee must show some harm
respecting an identifiable term or condition of employment.”); see also, e.g., Smith v. McDonough,
No. 20-1321 KK/JFR, 2024 WL 2804428, at *9-10 (D.N.M. May 31, 2024) (district court reviewing
its prior order in light of Muldrow but finding summary judgment for employer was still warranted
where “the challenged conduct is so mild and isolated, a reasonable juror could not conclude that
it altered the conditions of [the p]laintiff’s employment”).
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required to utilize a lesser degree of skill than [her] previous assignment”), abrogated on
other grounds by Buchanan v. Sherrill, 51 F.3d 227, 229 (10th Cir. 1995).
Plaintiff alleges that Employee D once “threatened to audit [her] time-cards when
[she] mistakenly used a DEDO payroll code” and would sometimes try to take over
meetings where Plaintiff was the point of contact. See Second Am. Compl. [#32] at 20-
21, ¶¶ 86-88. Even if these incidents occurred, Plaintiff does not explain how they
constituted “harm respecting an identifiable term or condition of employment.” Muldrow,
601 U.S. at 354-55. She does not allege that she faced any repercussion or reprimand
for the time-card error, and she does not explain how her new manager’s attempt to
command certain meetings impacted her ability to perform her job. “Drama sometimes
festers at work. And the court has no role in sorting out garden-variety workplace
disputes.” Pearson v. Kan. Dep’t of Corr., No. 23-2288-DDC, 2024 WL 4948884, at *1 (D.
Kan. Dec. 3, 2024). As noted in Ellis, Gomez, and Hooks, demotion claims typically
require the plaintiff to allege that she either lost rank, pay, or responsibility, but Plaintiff
makes no such allegations, and she does not otherwise allege at least some harm.7
Plaintiff’s alleged demotion cannot support an age discrimination claim. Therefore, this
part of Plaintiff’s ADEA claim will not be allowed to proceed to discovery. The Court grants
Defendant’s Motion [#35] to the extent it seeks dismissal of this aspect of Plaintiff’s ADEA
claim.
7 As Defendant argues, Plaintiff adds new factual details in her Response [#36], namely that she
was “not allowed to participate in an agency-wide discussion about internal controls” and that she
was “removed from a committee,” but the Court cannot consider these allegations because
Plaintiff cannot amend her operative complaint in response to a motion to dismiss. See Reply
[#37] at 8-9 (citing In re Qwest Commc’ns Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004)
(“The plaintiffs may not effectively amend their [c]omplaint by alleging new facts in their response
to a motion to dismiss.”)).
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c. 	Director of Administration and Federal Compliance Position
Thirdly, the Court addresses Plaintiff’s allegation that a younger white male
employee, 	Employee 	E, 	was 	promoted 	to 	Director 	of 	Administration 	and 	Federal
Compliance—a position for which Plaintiff did not apply. Plaintiff’s failure to apply is fatal
to this aspect of her ADEA claim. See Jones v. Barnhart, 349 F.3d 1260, 1266 (10th Cir.
2003) (stating that a failure-to-promote claim requires that the plaintiff “applied for and
was qualified for the position”) (citation omitted); cf. Evans v. Fed. Express Corp., 76 F.
App’x 263, 265-66 (10th Cir. 2003) (finding a failure to establish a prima facie failure-to-
promote claim where the promotion was not actually a promotion and the plaintiff did not
apply for the position).
Plaintiff attempts to invoke the futile gesture doctrine. See Second Am. Compl.
[#32] at 27 ¶ 128 (“[Plaintiff] did not apply . . . because she suspected that Employee E
had disparaged her”), 40 ¶ 229 (“The disparate treatment led Plaintiff to conclude that
she would never be considered for a promotion to Director of Administration and Federal
Compliance”). “A plaintiff alleging discrimination need not show [s]he applied for a job or
promotion and was rejected if doing so would have been futile.” Daniels v. United Parcel
Serv., Inc., 701 F.3d 620, 629 (10th Cir. 2012), disapproved of on other grounds in
Muldrow, 601 U.S. at 355-56 (citing Int’l Bhd. of Teamsters v. United States, 431 U.S.
324, 365 (1977)). The futile gesture doctrine “applies in cases where the employer has a
‘consistently enforced discriminatory policy’ that will deter applicants who are aware of
the policy from applying because they know they face ‘certain rejection.’” Daniels, 701
F.3d at 629 (quoting Int’l Bhd. of Teamsters, 431 U.S. at 365. A nonapplicant plaintiff must
plausibly allege that she “would have applied but for accurate knowledge of an employer’s
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discrimination and that [s]he would have been discriminatorily rejected had [s]he actually
applied.” Id. (quoting Bennett v. Quark, Inc., 258 F.3d 1220, 1227-28 (10th Cir. 2001),
abrogated in part on other grounds as explained in Boyer v. Cordant Techs., Inc., 316
F.3d 1137, 1140 (10th Cir. 2003)).
Here, Plaintiff has not plausibly alleged a consistently enforced discriminatory
policy that would excuse her from applying. Her “subjective belief” as to futility is
insufficient. Cf. Davoll v. Webb, 194 F.3d 1116, 1133 (10th Cir. 1999) (noting inadequacy
of mere subjective belief to invoke the futile gesture doctrine in context of an Americans
with Disabilities Act employment claim). Plaintiff’s allegations concerning futility have
nothing to do with age discrimination. First, she refers to the personal hostility between
herself and Employee E, which had apparently existed for years. See Second Am. Compl.
[#32] at 27, ¶ 128 (concerning “suspected” disparagement by Employee E); id. at 31, ¶
164 (concerning personal hostility between Plaintiff and Employee E from when she
trained him). Second, Plaintiff claims that Employee E was promoted because he had
more training and managerial experience than she had. Id. at 33, ¶ 178 (concerning
Employee E’s supervisory experience); Charge of Discrimination [#35-1] at 2 (alleging
that Employee E was promoted “in part because he was afforded training and other
opportunities”). As pleaded, Defendant’s promotion of Employee E cannot support an age
discrimination claim. Therefore, this part of Plaintiff’s ADEA claim will not be allowed to
proceed to discovery. The Court grants Defendant’s Motion [#35] to the extent it seeks
dismissal of this aspect of Plaintiff’s ADEA claim.
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d. 	Constructive Discharge
Finally, the Court addresses Plaintiff claims that she was constructively discharged
on October 4, 2022, because she “felt that [she] had no other reasonable option but to
submit [her] resignation.” Charge of Discrimination [#35-1] at 2.
Plaintiff alleges no details about how her work responsibilities, pay, or rank
changed between March 2022 (when Defendant did not promote her to Grant Compliance
Manager) and October 2022. The test for constructive discharge is objective, not
subjective. Cf. Romero v. Helmerich & Payne Int’l Drilling Co., 768 F. App’x 838, 842
(10th Cir. 2019) (stating that to prevail on a constructive discharge claim, Colorado law
requires a plaintiff to show objectively intolerable working conditions and resignation as a
result); Yearous v. Niobrara Cnty. Mem’l Hosp. ex rel. Bd. of Trs., 128 F.3d 1351, 1356
(10th Cir. 1997) (“A plaintiff’s subjective views of the situation are irrelevant.”) (citations
omitted). “The bar is quite high in such cases: the plaintiff must show that [s]he had no
other choice but to quit.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1221 (10th Cir.
2002) (citation omitted) (finding that “an extended period of [supervisors’] intimidating
behavior,” which diminished the plaintiff’s job performance, and “repeated denials of his
requests to transfer” were insufficient to “raise an inference that he was left with no choice
but to resign when he did”).
Plaintiff’s assertion that she was constructively discharged or forced to resign is
entirely conclusory. She offers no details about how her work conditions became so
intolerable that she had to resign in October 2022. On the contrary, she plainly attributes
her resignation decision to concerns that existed “[t]hroughout [her] employment” such as
exclusion from meetings, training sessions, and career development opportunities and
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heavy workload. See Charge of Discrimination [#35-1] at 2 (stating that Plaintiff resigned
“due to the ongoing and unremedied discriminatory treatment in the workplace”). To the
extent these conditions had persisted for years, Plaintiff does not explain why she was
compelled 	to 	resign 	in 	October 	2022. 	As 	pleaded, 	Plaintiff’s 	alleged 	constructive
discharge cannot support an age discrimination claim. Therefore, this part of Plaintiff’s
ADEA claim will not be allowed to proceed to discovery. The Court grants Defendant’s
Motion [#35] to the extent it seeks dismissal of this aspect of Plaintiff’s ADEA claim.
In summary, Plaintiff’s First Claim is dismissed without prejudice to the extent
she claims age discrimination based on (1) the “demotion” that resulted from the change
in reporting structure after Employee D’ promotion; (2) Employee E’s promotion to
Director of Administration and Federal Compliance, for which Plaintiff did not apply; or (3)
her resignation in October 2022, which she frames as a “constructive discharge”. See,
e.g., Gee v. Pacheco, 627 F.3d at 1186 (stating that “ordinarily the dismissal of a pro se
claim 	under 	Rule 	12(b)(6) 	should 	be 	without 	prejudice”). 	Plaintiff’s 	First 	Claim 	is
dismissed with prejudice to the extent she claims age discrimination based on any
discrete acts that predated January 21, 2022. See, e.g. AdvantEdge Bus. Grp. v. Thomas
E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (recognizing that “a
dismissal with prejudice can have the practical effect of a dismissal with prejudice” if a
claim is time-barred”). Plaintiff’s First Claim may proceed only to the extent it is premised
on Defendant’s failure to promote her to the Manager of Grant Compliance position.
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2. 	Third Claim (Race Discrimination - Title VII, 42 U.S.C. § 1981, CADA,
and the Equal Protection Clause)8
“Title VII and Section 1981 prohibit employers from discriminating against an
employee on the basis of race. For discrimination claims based on disparate treatment,
[a] plaintiff must establish that she was treated differently because of race and that she
suffered adverse employment action.” Wilson v. Mercury Mgmt., LLC, No. 23-2245-KHV,
2023 WL 6961987, at *3 (D. Kan. Oct. 20, 2023) (citing E.E.O.C. v. PVNF, L.L.C., 487
F.3d 790, 800 (10th Cir. 2007)). “In addition, Section 1981 discrimination claims require
that [a] plaintiff allege that [the] defendant had the intent to discriminate on the basis of
race.” Id. (citing Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir.
2001)). Likewise, “[t]o state an equal protection claim against a municipality in the
employment context, the plaintiff must show that the defendant’s conduct, taken under
color of law: (i) constitutes an adverse employment action; (ii) was motivated by a
discriminatory intent; and (iii) was pursuant to the defendant’s policy or custom.” Hunt v.
Cent. Consol. Sch. Dist., 951 Supp. 2d 1136, 1186 (D.N.M. 2013) (internal quotation
marks omitted).
“Where a plaintiff brings a ‘reverse discrimination’ claim, [s]he ‘must, in lieu of
showing that [s]he belongs to a protected group, establish background circumstances that
support an inference that the defendant is one of those unusual employers who
8 Legal standards under CADA, 42 U.S.C. § 1981, and the Equal Protection Clause mirror those
of Title VII. See Stinnett v. Safeway, Inc., 337 F.3d 1213, 1219 (10th Cir. 2003) (“Colorado has
adopted the same standards applicable to Title VII cases when considering claims brought under
[CADA].”) (citing Colo. Civ. Rts. Comm’n v. Big O Tires, Inc., 940 P.2d 397, 400-01 (Colo. 1997));
see also Davis v. Unified Sch. Dist. 500, 750 F.3d 1168, 1170 (10th Cir. 2014) (stating that “the
standards are the same” to prove violations of Title VII or 42 U.S.C. § 1981); Hunt v. Cent. Consol.
Sch. Dist., 951 F. Supp. 2d 1136, 1187-88 (D.N.M. 2013) (collecting published circuit court cases
that applied Title VII standards to Equal Protection discrimination claims brought under § 1983).
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discriminates against the majority.’” Smith v. McDonough, No. 22-6131, 2023 WL
2765898, at *4 (10th Cir. Apr. 4, 2023) (quoting Argo v. Blue Cross & Blue Shield of Kan.,
Inc., 452 F.3d 1201 (10th Cir. 2006)) (additional citation omitted). “Alternatively, a plaintiff
may produce facts ‘sufficient to support a reasonable inference that but for [the] plaintiff’s
status the challenged decision would not have occurred.’” Smith, 2023 WL 2765898, at
*4 (quoting Argo, 452 F.3d at 1201) (additional citation omitted).
Here, Plaintiff does not allege any facts that create an inference that Defendant is
one of those rare employers who discriminates against white employees. As previously
noted, Defendant’s failure to promote Plaintiff to the Manager of Grant Compliance
position is the only plausibly alleged adverse employment action. However, Plaintiff
admits that during the same timeframe when Denver promoted Employee D, it also
promoted a white employee—Employee E—to a director position. See Second Am.
Compl. [#32] at 27, ¶ 126 (“Employee E applied for and was promoted to Director of
Administration and Federal Compliance in DEDO around March 2022.”). As a result,
Plaintiff has not plausibly alleged that, but for her race, she would have been promoted.
See, e.g., Amarsingh v. Frontier Airlines, Inc., No. 23-cv-01875-GPG-KAS, 2024 WL
4523868, at *5 (D. Colo. Sept. 24, 2024), appeal filed, No. 24-1391 (10th Cir. Oct. 8,
2024) (finding plaintiff’s allegation that an African American man was also bumped from
her flight was fatal to her § 1981 theory that airline’s gate agents “were motivated by racial
discrimination in favor of African Americans” because “[i]f race were truly the deciding
factor, [the defendant’s] agents would have seated the African American”).
Plaintiff has not plausibly alleged that Defendant is one of those unusual employers
who racially discriminates against the majority, in part because she alleges that a white
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employee, Employee E, received a promotion. “[T]here is nothing other than sheer
speculation to link [Defendant D's promotion] to a discriminatory or retaliatory motive.”
Khalik, 671 F.3d at 1194; see also French v. Denver Pub. Schs., No. 23-cv-01614-NYW-
MDB, 2024 WL 3276159, at *17 (D. Colo. July 2, 2024) (“Fatal to [the plaintiff’s] claim,
however, is the lack of any circumstances to suggest that this bias was [race]-based.”).
Plaintiff’s Third Claim is dismissed without prejudice for failure to state a claim. See,
e.g., Gee, 627 F.3d at 1186. Plaintiff’s Third Claim is dismissed with prejudice to the
extent she claims race discrimination based on any discrete acts that predated January
21, 2022. See, e.g. AdvantEdge Bus. Grp., 552 F.3d at 1236.
3. 	Fifth Claim (Sex/Gender Discrimination – Title VII, CADA)
Similarly, Plaintiff’s sex/gender discrimination claim fails because she has not
plausibly alleged an adverse employment action that could possibly have “occurred
‘under circumstances which give rise to an inference of unlawful discrimination.’” Plotke
v. White, 405 F.3d 1092, 1100 (10th Cir. 2005) (quoting Kendrick v. Penske Transp.
Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000)). As previously discussed, Plaintiff has
plausibly 	identified 	just 	one 	potentially 	actionable 	adverse 	employment 	action:
Defendant’s promotion of Defendant D to the Manager of Grant Compliance position.
However, Plaintiff admits that several supervisors at HOST and DEDO were women while
she was employed there, and the person who was promoted instead of Plaintiff was also
a woman. See, e.g., Second Am. Compl. [#32] at 13, ¶ 35 (identifying Employee D’s
manager in 2021 as a female); Charge of Discrimination [#35-1] at 1 (identifying
Employee D as a female; id. at 2 (identifying Director of the Financial Management Unit
as a female).
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Here, Plaintiff has alleged no facts tending to show that she was discriminated
against 	based 	on 	her 	sex 	or 	gender 	or 	that 	the 	workplace 	was 	permeated 	by
discriminatory treatment towards women or towards Plaintiff because she is a woman.
“[T]here is nothing other than sheer speculation to link [Defendant D's promotion] to a
discriminatory or retaliatory motive.” Khalik, 671 F.3d at 1194; see also French, 2024 WL
3276159, at *17 (“Fatal to [the plaintiff’s] claim, however, is the lack of any circumstances
to suggest that this bias was sex-based.”). Therefore, Plaintiff’s Fifth Claim is dismissed
without prejudice for failure to state a claim. See, e.g., Gee, 627 F.3d at 1186. Plaintiff’s
Fifth 	Claim 	is 	dismissed 	with 	prejudice 	to 	the 	extent 	she 	claims 	sex/gender
discrimination based on any discrete acts that predated January 21, 2022. See, e.g.
AdvantEdge Bus. Grp., 552 F.3d at 1236.
D. 	Retaliation Claims (Second, Fourth, and Sixth Claims)
1. 	Retaliation under ADEA, Title VII, 42 U.S.C. § 1981, CADA, and the
Equal Protection Clause
Plaintiff’s Second, Fourth, and Sixth Claims allege that Defendant retaliated
against her in violation of the ADEA, Title VII, 42 U.S.C. § 1981, CADA, and the Equal
Protection Clause. See Second Am. Compl. [#32], ¶¶ 209-15, 222-25, 231-35.
At the outset, the Court addresses Plaintiff’s claim that Defendant engaged in race-
based retaliation in violation of the Equal Protection clause. See Second Am. Compl.
[#32] at 32, ¶¶ 222-225 (Claim Four). In support, Plaintiff alleges that she “engaged in
protected activity when she filed a race discrimination complaint” and “Defendant
retaliated 	by 	engag[ing] 	in 	unwarranted 	feedback, 	unwarranted 	accusations 	of
insubordination,” and through other measures. Id., ¶¶ 223-224. Because Plaintiff’s
retaliation-based Equal Protection claim is premised on alleged retaliation in response to
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protected activity, Claim Four is non-viable, and dismissal is warranted. See, e.g.,
Teigen v. Renfrow, 511 F.3d 1072, 1086 (10th Cir. 2007) (holding that a retaliation claim
arising from protected conduct concerning an employer’s unlawful employment policies
“cannot form the basis for a constitutional equal protection violation.”); Sims v. Unified
Gov’t of Wyandotte Cnty./Kansas City, Kan., 120 F. Supp. 2d 938, 959 (D. Kan. 2000)
(noting that “no court has recognized a claim under the equal protection clause for
retaliation 	following 	complaints 	of 	racial 	discrimination”) 	(collecting 	circuit 	court
decisions).
As for Plaintiff’s remaining retaliation claims, the Court discusses them together
because they share the same elements. See Lindsay v. Denver Pub. Schs., 88 F.4th
1323, 1327 (10th Cir. 2023) (noting similarity of elements among retaliation claims under
§ 1981, Title VII, and the Colorado Anti-Discrimination Act); Weathersby v. Latshaw
Drilling Co., LLC, No. 24-CV-03638-CVE-CDL, 2024 WL 4896604, at *7 (N.D. Okla. Nov.
26, 2024) (noting that retaliation claims under Title VII, § 1981, and the ADEA are
governed by the same standards). Each of the statutes on which Plaintiff’s retaliation
claims rests “prohibits an employer from discriminating against an employee for engaging
in a protected activity.” Weathersby, 2024 WL 4896604, at *7. Under these statutes, a
plaintiff must plausibly allege that “(1) he or she engaged in protected opposition to
discrimination, (2) a reasonable employee would have considered the challenged
employment action materially adverse, and (3) a causal connection existed between the
protected activity and the materially adverse action.” Hinds v. Sprint/United Mgmt. Co.,
523 F.3d 1187, 1202 (10th Cir. 2008) (citation omitted); see also Weathersby, 2024 WL
4896604, at *7. Additionally, while retaliation claims under these statutes share the same
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elements, they “do not share the same causal standards.” Weathersby, 2024 WL
4896604, at *7 n.13 (noting that “but-for” causation standard applies to Title VII, § 1981,
and ADEA claims); see also Lindsay, 88 F.4th at 1237 (acknowledging “subtle analytical
variations” among each statute’s causation standard). However, because Plaintiff has not
plausibly alleged any causal connection between a protected activity and an adverse
employment action, the court need not consider her retaliation claims under the different
causation standards. See Weathersby, 2024 WL 4896604, at *7 n.13.
In the context of these retaliation claims, “materially adverse” means that “it might
well have ‘dissuaded a reasonable worker from making or supporting a charge of
discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)) (internal quotation
marks omitted). While the Supreme Court’s Muldrow decision modified the “adverse
employment action” standard for a discrimination claim, the Supreme Court expressly left
intact White’s “materially adverse” requirement for retaliation claims. See Muldrow, 601
U.S. at 357 (“White adopted the [material adversity] standard for reasons peculiar to the
retaliation context.”).
Here, Plaintiff alleges that she “was retaliated against for filing a complaint related
to . . . Employee D’s promotion” on or around June 15, 2022. Second Am. Compl. [#32]
at 6; Charge of Discrimination [#35-1] at 2. However, she does not allege (and did not
charge) any specific adverse employment actions that occurred after that date. Instead,
Plaintiff makes conclusory assertions that (1) she was “isolated, denied opportunities to
participate in meetings that were relevant to her position,” (2) she was forced to report to
Employee D after Employee D’s promotion, (3) she was “accused of insubordination” and
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“not doing her job for 2 years,” (4) the Finance Director and Manager of Grants and
Compliance sought to make her job “more difficult and time-consuming” by forcing her to
use audit worksheets, and (5) the Finance Director prevented her from explaining what
federal funds monitoring she conducted or from discussing an auditor’s findings. Second
Am. Compl. [#32] at 6-7. Additionally, she points to alleged continued retaliation by her
former coworkers even though she no longer works with them. See Second Am. Compl.
[#32] at 7. However, any alleged post-employment retaliation cannot logically constitute
an employment action whether materially adverse or not.
The test for material adversity is objective, not subjective. Cf. White, 548 U.S. at
68, 69 (requiring plaintiffs to “show that a reasonable employee would have found the
challenged action materially adverse”). Without further factual enhancement, the Court
cannot reasonably infer that these actions, either individually or collectively, rose to the
level of a “materially adverse” employment action necessary to state a retaliation claim
under ADEA, Title VII, § 1981, or CADA. “Context matters.” White, 548 U.S. at 69
(comparing and contrasting situations, which based on a given context, could be
materially adverse, but may not be in another context).
These statutes are meant to “prohibit[] employer actions that are likely to deter
victims of discrimination from complaining to the EEOC, courts, or their employers,” and
“normally petty slights, minor annoyances, and simple lack of good manners will not
create such deterrence.” White, 548 U.S. at 68 (quoting Robinson v. Shell Oil Co., 519
U.S. 337, 346 (1997)) (internal quotation marks omitted); see also id. (stating that
“personality conflicts at work that generate antipathy” and “‘snubbing’ by supervisors and
co-workers” are not actionable) (quoting 1 B. L INDEMANN & P. G ROSSMAN, E MPLOYMENT
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DISCRIMINATION L AW 669 (3d ed. 1996)). Plaintiff has failed to allege that she suffered any
materially adverse action after she filed her discrimination complaint based on a younger
Black employee’s (Employee D’s) promotion.
In sum, Plaintiff has not plausibly pleaded a claim for retaliation under the ADEA,
Title VII, § 1981, or CADA. Her Second, Fourth, and Sixth Claims are therefore
dismissed without prejudice. See, e.g., Gee, 627 F.3d at 1186. These claims are
dismissed with prejudice to the extent she claims retaliation based on any discrete acts
that predated January 21, 2022. See, e.g. AdvantEdge Bus. Grp., 552 F.3d at 1236.
2. 	FMLA Retaliation
Plaintiff briefly alleges that Defendant “retaliated against [her] for using intermittent
FMLA from 2017 to 2020 to care for her father” in the form of “lack of career development
compared to . . . Employee D and Employee E[.]” Second Am. Compl. [#32] at 8; see also
id. at 3. Defendant argues that this claim is barred by FMLA’s general two-year statute of
limitations and that she has not shown that the three-year limitations period for “willful”
violations is applicable. See Motion [#35] at 15 (arguing that “Plaintiff alleges she took
FMLA leave in 2020, so at the latest, her claim would have expired on December 31,
2022—nine months prior to Plaintiff’s filing of her initial complaint”). This is incorrect
because an FMLA retaliation claim can accrue after an employee returns to work. See,
e.g., Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287-88 (10th Cir. 2007)
(stating that “a retaliation claim may be brought when the employee successfully took
FMLA leave, was restored to her prior employment status, and was adversely affected by
an employment action based on incidents post-dating her return to work”) (citing Doebele
v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1136-38 (10th Cir. 2003) (analyzing an FMLA
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claim presented in retaliation context, where claim arose from termination for alleged
attendance problems after her return from FMLA)); see also 29 U.S.C. § 2617(c)(1)
(directing that, in absence of willful conduct, FMLA claim must be brought within two years
of “the last event constituting the alleged violation”).
Plaintiff’s FMLA allegations are so threadbare that the Court cannot determine
when they accrued, so they cannot be dismissed based on the affirmative defense of
statute of limitations. However, as with her other retaliation claims, they are subject to
dismissal for failure to state a claim.
The elements of a prima facie FMLA retaliation claim are the same as the elements
for retaliation under ADEA, Title VII, § 1981, and CADA. Compare Hinds, 523 F.3d at
1202 and Lindsay, 88 F.4th at 1327 with Campbell, 478 F.3d at 1287. Here, Plaintiff offers
no factual allegations about what specific adverse actions Defendant allegedly took in
retaliation for her using FMLA leave from 2017 to 2020. See Second Am. Compl. [#32] at
8. She gestures at a “lack of career development” but she does not identify any specific
“action that a reasonable employee would have found materially adverse,” such as
termination, demotion, transfer, or reprimand. Campbell, 478 F.3d at 1287 (quotation
omitted).
Plaintiff also fails to causally connect her “lack of career development” to her taking
FMLA leave. Specifically, elsewhere in her Complaint [#32] and Charge of Discrimination
[#35-1], she attributes her lack of career development to workload, racial discrimination,
age discrimination, and sex discrimination. See, e.g., Charge of Discrimination [#35-1] at
2 (claiming that throughout her career, Plaintiff was “excluded from meetings, training
sessions, and career development opportunities that a similarly situated male coworker
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was allowed to attend”); Second Am. Compl. [#32] at 14, ¶ 40 (“[The former director] and
[the Finance Director] simply decided that [Plaintiff] was not to be recognized for the same
activities 	that 	Employee 	D 	did. 	[Plaintiff] 	was 	not 	to 	be 	given 	developmental 	or
advancement 	opportunities.”); 	id. 	at 	15, 	¶ 	48 	(alleging 	that 	Plaintiff 	was 	denied
developmental opportunities in part “because of [her] discriminatory workload”). Plaintiff’s
own pleading undermines her suggestion that her lack of career development was
causally connected to her taking FMLA leave.
To the extent Plaintiff attempts to allege FMLA retaliation, that claim is dismissed
without prejudice for failure to state a claim. See, e.g., Gee, 627 F.3d at 1186.
E. 	Hostile Work Environment (Third Claim)
In her third claim, Plaintiff lodges a claim for age- and race-based hostile work
environment under the Equal Protection clause, § 1981, Title VII, and CADA, in addition
to the already discussed race discrimination claim. She alleges that “[t]he hostile work
environment was caused by the Chief Executive Office of DEDO bragging about how
diverse DEDO was and how so many different languages are spoken by the employees
at DEDO.” Second Am. Compl. [#32] at 38, ¶ 218. She further alleges that the hostile
work environment “was caused by 2 black directors in HOST, who would be very friendly
when talking with black co-workers while ignoring white staff” and by a multi-day seminar
that HOST and DEDO presented and during which “black employees made it clear how
much they resented and disliked white employees, making comments like, ‘every day is
a battle.’” Id. ¶¶ 219, 220; see also id. ¶¶ 28-31 (alleging that “the working environment
was hostile to older and white employees”).
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At the outset, the Court again notes that the substantive analyses for race- and
age-based hostile work environment claims under the Equal Protection clause, § 1981,
Title VII, and CADA9 are identical. See Lounds v. Lincare, Inc., 812 F.3d 1208, 1221 (10th
Cir. 2015) (concerning § 1981 and Title VII); Stinnett v. Safeway, Inc., 337 F.3d 1213,
1219 (10th Cir. 2003) (concerning Title VII and CADA); Weathersby, 2024 WL 4896604,
at *7 (concerning Title VII, § 1981, and ADEA); Nieto v. Kapoor, 182 F. Supp. 2d 1114,
1140 (D.N.M. 2000) (concerning the Equal Protection Clause and Title VII).
To state an actionable race- or age-based hostile work environment claim, “a
plaintiff must allege: (1) membership in a protected class; (2) [s]he was subjected to
unwelcome harassment; (3) the harassment was due to race [or age]; and (4) the
harassment was so severe or pervasive that it altered a term, condition, or privilege of
[her] employment and created an abusive environment.” Young v. Colo. Dep’t of Corr.,
94 F.4th 1242, 1249 (10th Cir. 2024) (citing Lounds, 812 F.3d at 1222).
“Whether an environment is hostile or abusive can be determined only by looking
at all the circumstances including the frequency of the discriminatory conduct; its severity;
9 At the time of the alleged conduct that created a hostile work environment, i.e., sometime before
Plaintiff’s October 2022 resignation, CADA hostile work environment claims required the same
substantive analysis as claims under Title VII and the like. However, in 2023, CADA was amended
to 	depart 	from 	Title 	VII’s 	“severe 	and 	pervasive” 	standard 	in 	three 	circumstances: 	(1)
“[s]ubmission to the conduct or communication is explicitly or implicitly made a term or condition
of” employment; (2) “[s]ubmission to, objection to, or rejection of the conduct or communication is
used as a basis for employment decisions affecting the individual”; or (3) “[t]he conduct or
communication has the purpose or effect of unreasonably interfering with the individual’s work
performance or creating an intimidating, hostile, or offensive working environment.” See COLO.
REV. STAT. § 24-34-402(1.3)(a)(I)-(III); see also Peterson v. City of Aurora, No. 24CA0067, 2025
WL 415486, at *2 (Colo. App. Feb. 6, 2025) (noting recent change in the law). Because these
amendments were intended to be prospective, and the alleged conduct occurred before the
amendments, the Court adheres to CADA’s previous definition of “hostile environment.” See
Peterson, 2025 WL 415486, at *2 (noting prospective nature of amendments and upholding jury
instructions premised on CADA’s pre-amendment definition of “hostile work environment”) (citing
2023 Colo. Sess. Laws 2323, 2335-36).
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whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work performance.” Stinnett, 337
F.3d at 1219 (internal quotation marks and citation omitted); see also COLO. REV . S TAT. §
24-34-402(1.3)(c)(II)(A)-(I) (identifying factors such as frequency and duration of the
conduct, the number of individuals engaged in the conduct or communication, the
threatening nature, a power differential between the alleged harasser and the alleged
victim, use of epithets or slurs, and whether the conduct or communication reflects
stereotypes about a protected class) (added in 2023, see 2023 Colo. Sess. Laws 2328).
For harassment to rise to the level where it “alter[s] the terms, conditions, or
privileges of employment, the complained-of conduct must be both objectively and
subjectively offensive.” Young, 94 F.4th at 1250 (citing Sprague v. Thorn Ams., Inc., 129
F.3d 1355, 1365 (10th Cir. 1997); Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Thus, in addition to plausibly alleging that she subjectively perceived the employer's
conduct as severe or pervasive, a plaintiff must “show that a rational jury could find that
the workplace is permeated with discriminatory intimidation, ridicule, and insult.” Young,
94 F.4th at 1251; see also COLO. REV . S TAT. § 24-34-402(1.3)(a) (describing conduct or
communication that is “subjectively offensive to the individual alleging harassment and is
objectively offensive to a reasonable individual who is a member of the same protected
class”). “[A] single event, if extraordinarily severe, can alter the conditions of a working
environment.” 	Young, 	94 	F.4th 	at 	1250; 	see 	also 	COLO. 	R EV . 	S TAT. 	§ 	24-34-
402(1.3)(c)(II)(A) (“a single incident may rise to the level of harassment”) (added in 2023,
see 2023 Colo. Sess. Laws 2328).
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Here, even if the Court assumes that Plaintiff has satisfied the first and third
elements, i.e. that she was a member of a protected class and that any harassment was
due to race or age, her Second Amended Complaint [#32] does not show that any
harassment was sufficiently severe or pervasive as to create a hostile work environment.
Her allegations are like those in Young, where the plaintiff alleged a hostile work
environment claim based on the Colorado Department of Corrections’ mandatory Equity,
Diversity, 	and 	Inclusion 	(EDI) 	employee 	training, 	which 	he 	claimed 	created 	a
discriminatory climate at the workplace. See 94 F.4th at 1245. That plaintiff further
claimed that “his employer’s refusal to investigate or remedy the situation led him to resign
from his employment[.]” Id. at 1248. He had claimed he was “forced to resign from his
position” without offering “specific facts, context, or explanation for why or how he was
forced to resign.” Id. at 1251. He had also failed to allege any details about “how the
training related to his actual workplace experience.” Id. at 1251.
In similar fashion, Plaintiff alleges a race-based hostile work environment created
by a senior manager bragging about the diverse and multi-lingual staff, Black directors’
friendliness with Black co-workers, Black directors’ ignoring White coworkers, and a multi-
day EDI seminar where Black employees “made clear” their resentment for White
employees. Second Am. Compl. [#32], ¶¶ 218-20. Plaintiff asserts an age-based hostile
work environment on a vague allegation that OED/HOST “driv[e] off or fir[e] older workers”
and “routinely promote[] younger, inexperienced workers over older workers.” Id. ¶ 31;
see also id. ¶ 59 (alleging that a program director was “bigoted against older employees,”
and “terminat[ed],” “manag[ed] out,” or “[ran] off” an older employee), ¶ 84 (alleging that
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inexperienced 	employees 	are 	“regularly 	promoted” 	over 	older, 	more 	experienced
workers).
None of these allegations are sufficient. On its face, the DEDO Chief Executive
Officer’s comment about languages has nothing to do with race—people of all races
speak various languages. The allegations about Black directors and White staff and
HOST’s/DEDO’s multi-day EDI seminar are vague and do not allege any specific conduct
directed at Plaintiff or “related to [her] actual workplace experience,” such as by way of
insults or ridicule directed at her because of the multi-day seminar or threatened
punishment if she did not attend the seminar. Young, 94 F.4th at 1251. Finally, the office’s
EDI training does not, alone, establish severe or pervasive harassment. Id. (noting that
the plaintiff “did not allege that the training occurred more than once, that his supervisors
threatened to punish or otherwise discipline employees who failed to complete or agree
with the materials, or that co-workers engaged in specific acts of insult or ridicule aimed
at him because of the training”).
Plaintiff’s allegations pale in comparison to the allegations asserted in Lounds, 812
F.3d 1208, and Tademy v. Union Pacific Corporation, 614 F.3d 1132 (10th Cir. 2008), two
cases the Young court compared and contrasted with the allegations before it. In Lounds,
the Tenth Circuit reversed a district court’s summary judgment award for a defendant
employer on a race-based hostile work environment claim. There, the plaintiff had alleged
that her direct supervisor made insulting, racialized remarks about her name and directed
statements to her filled with race-based stereotypes. Lounds, 812 F.3d at 1213. The
plaintiff also alleged that she witnessed conversations among her co-workers about
lynching of Black people, that a co-worker used the N word in her proximity, that a staff
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meeting was laden with references to slavery, and she identified multiple specific
incidents that made her feel “bombarded with racial slurs and comments.” Id. at 1213-17.
In its decision to reverse and remand, the Tenth Circuit reasoned that a fact finder should
decide whether the alleged harassment was pervasive. Id. at 1226. Along the way, it drew
from precedent which states, “[i]nstead of sporadic racial slurs, there must be a steady
barrage of opprobrious racial comments.” Id. at 1223 (quoting Bolden v. PRC Inc., 43
F.3d 545, 551 (10th Cir. 1994)).
In Tademy, the Tenth Circuit also reversed a summary judgment award for a
defendant 	employer. 	There, 	the 	plaintiff 	had 	alleged 	that 	a 	subordinate 	did 	not
communicate with him because the plaintiff is Black, the plaintiff found the N word on his
work locker and in a work restroom on more than one occasion, he observed racist
cartoons posted at work, the plaintiff’s employer failed to take any meaningful disciplinary
action 	when 	the 	plaintiff 	complained 	of 	specific 	incidents, 	an 	employee 	broadly
disseminated an email directing all employees to “Keep an eye on the slaves” and copies
of the email were posted throughout his employer’s facilities, and the plaintiff observed a
“life-size hangman’s noose” suspended from an industrial clock, which caused him to
vomit. 614 F.3d at 1135-38. In its decision to reverse and remand, the Tenth Circuit
reasoned that the plaintiff had “alleged a series of acts of harassment, culminating in the
life-sized lynching noose, an incident that affected him so profoundly that he did not return
to work” at the defendant corporation. Id. at 1144 (internal quotations a modifications
omitted). The court also reasoned that display of the N word on the plaintiff’s locker and
in other work locations is “the sort of conduct that would make any reasonable person
feel uncomfortable—and entirely unwelcome[.]” Id. at 1145.
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Plaintiff’s allegations are so far removed from the severity or pervasiveness of the
conduct alleged in Lounds and Tademy. They are more akin to the allegations in Stinnett
v. Safeway, which did not survive summary judgment. There, the Tenth Circuit affirmed
a summary judgment award for the employer where a plaintiff based her hostile work
environment claim on assertions that “only female employees were required to clean
underneath checkstands and serve on-call to remote locations” and “males obtained extra
training.” 337 F.3d at 1219.
In sum, Plaintiff has not pleaded sufficient facts to show that she endured severe
or 	pervasive 	harassment 	in 	the 	course 	of 	her 	job. 	Therefore, 	her 	Third 	Claim
(Discrimination and Hostile Work Environment) is dismissed without prejudice to the
extent she alleges a racially hostile work environment claim. See, e.g., Gee, 627 F.3d at
1186.
IV. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#35] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Second Claim (ADEA Retaliation), Third
Claim (Race-Based Discrimination and Hostile Work Environment under the Equal
Protection Clause, Title VII, § 1981, and CADA), Fourth Claim (Race-Based Retaliation),
Fifth Claim (Sex/Gender Discrimination under Title VII and CADA), and Sixth Claim
(Sex/Gender 	Retaliation 	under 	Title 	VII 	and 	CADA) 	are 	DISMISSED 	WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s First Claim (ADEA Discrimination) may
proceed to the extent it is premised on Defendant’s alleged failure to promote to the Grant
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Compliance Manager position. The First Claim is otherwise DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that, to the extent Plaintiff alleges an FMLA retaliation
claim, it is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff’s age-, race-, and sex/gender-based
claims for discrimination and retaliation are DISMISSED WITH PREJUDICE to the extent
they are based on any discrete acts that predate January 21, 2022.
Dated: March 29, 2025 	BY THE COURT:
Kathryn A. Starnella
United States Magistrate Judge
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