1:23-cv-02956•Majersky v. Denver Public Schools
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 23-cv-02956-SKC-KAS GREGORY MICHAEL MAJERSKY, Plaintiff, v. DENVER PUBLIC SCHOOLS, Defendant. _____________________________________________________________________ RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE _____________________________________________________________________ ENTERED BY MAGISTRATE JUDGE KATHRYN A. STARNELLA This matter is before the Court on Defendant’s Motion to Dismiss Employment Discrimination Complaint [#20]1 (the “Motion”). Plaintiff filed a Response [#26] in opposition to the Motion [#20], and Defendant filed a Reply [#27]. The Motion [#20] has been referred to the undersigned for a Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D.C.COLO.LCivR 72.1(c)(3). See [#25]. The Court has reviewed the briefs, the entire case file, and the applicable law. For the reasons stated below, the Court RECOMMENDS that the Motion [#20] be GRANTED. 1 “[#20]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court’s case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation. Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 1 of 13
2 I. Background2 Plaintiff proceeds in this matter as a pro se litigant.3 According to the Second Amended Complaint [#16],4 Plaintiff is a male who began working for Defendant Denver Public Schools on October 8, 2018, as a security administrator in Defendant’s department of technology services. Colo. Civil Rights Compl. Against DPS (“CCR Complaint”) [#16- 1] at 1. Plaintiff’s former romantic partner, Rebecca Sposato (“Sposato”), is a female who works as a nurse at the Downtown Denver Expeditionary School (“DDES”), which is a charter school of Defendant. Statement of Injury and Evidence [#8-1] at 2; CCR Compl. 2 To resolve the Motion [#20], the Court accepts as true all well-pleaded, as opposed to conclusory, allegations made in Plaintiff’s Second Amended Complaint [#16]. 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 his briefs, the Court notes that a party may not amend his complaint in motion briefing. See, e.g., Kan. Motorcycle Works USA, LLC v. McCloud, 569 F. Supp. 3d 1112, 1127 (D. Kan. 2021) (stating that “a party may not amend its complaint by way of arguments in a brief”); 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 Plaintiff may not amend his Complaint by adding factual allegations in response to Defendants’ Motion to Dismiss”). 3 The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant’s advocate, nor should the Court “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 In the Second Amended Complaint [#16], Plaintiff incorporates the exhibits attached to a prior complaint. See [#16] at 3; [#8-1] through [#8-21]. D.C.COLO.LCivR 15.1(b) states, “[u]nless otherwise ordered,” proposed amended or supplemental pleadings “shall not incorporate by reference any part of the preceding pleading, including exhibits.” (emphasis added). Despite his pro se status, Plaintiff is required to follow the same procedural rules as parties represented by counsel. Sears v. Jefferson Cnty. Det. Ctr., No. 20-cv-02293-RM-NYW, 2020 WL 4582721, at *1 (D. Colo. Aug. 10, 2020). In this instance, however, the Court has considered the exhibits incorporated by reference in, as well as the documents attached to, the Second Amended Complaint [#16]. Commonwealth Prop. Advocs., LLC v. Mortg. Elec. Registration Sys., Inc., 680 F.3d 1194, 1201 (10th Cir. 2011) (“In evaluating a motion to dismiss, [the court] may consider not only the complaint, but also the attached exhibits and documents incorporated into the complaint by reference.”). Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 2 of 13
3 [#16-1] at 1. Plaintiff and Ms. Sposato have a daughter, E.M., who is a student at DDES. CCR Complaint [#16-1] at 1. In December 2018, Plaintiff accused Ms. Sposato of abusing E.M. at their home during breakfast. Statement of Injury and Evidence [#8-1] at 1; Abuse Report DPD [#8-2] at 11. An investigation by the Denver Police Department concluded that Ms. Sposato had assaulted E.M., but the Denver District Attorney declined to file charges against her due to the lack of a likelihood of conviction. Abuse Report DPD [#8-2] at 3, 9. Since that time, Plaintiff has repeatedly complained to DDES and its principal about Ms. Sposato and her continued employment. Statement of Injury and Evidence [#8-1] at 1-2; CCR Compl. [#16- 1] at 1-2. In August 2021, October 2021, and February 2022, Plaintiff complained to the “U.S. Secret Service” about Defendant’s cybersecurity and data breaches. See Statement of Injury and Evidence [#8-1]; Email to Secret Service 1 [#8-11]; Email to Secret Service 2 [#8-12]; Email to Secret Service 3 [#8-13]. He also complained to his colleagues about these issues. Id. One specific issue he complained about to his colleagues was “Chromebook security,” which he asserted demonstrated a “lack of concern” by the Manager of the Device Management Team. Statement of Injury and Evidence [#8-1] at 2; Fear of Chromebook Incompetence [#8-14] at 1. In January 2023, E.M. was involved in a bullying incident. Statement of Injury and Evidence [#8-1] at 1-2; CCR Compl. [#16-1] at 1. Plaintiff complained to the principal of DDES about the incident and about Ms. Sposato, in part accusing DDES of ignoring the safety of female students and promoting a “boys will be boys” culture. Statement of Injury and Evidence [#8-1] at 1-2; CCR Compl. [#16-1] at 1. On February 8, 2023, he further Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 3 of 13
4 complained to Defendant’s Human Resources Department about Ms. Sposato’s employment, specifically asserting that Defendant was aware of the child abuse allegations against Ms. Sposato but had done nothing about them. Email to DPS about Rebecca [#8-19]. After his February 8, 2023 complaint, Plaintiff used his position as a security administrator to “access[ ] the DDES principal’s email and [his] supervisor’s email to check if the principal was attempting to retaliate against [him]” because he was upset about the bullying incident. CCR Compl. [#16-1] at 1. On February 17, 2023, Plaintiff complained to the “U.S. Secret Service” about “very serious lapses in judgment regarding IT and loT [sic] security that does not just affect [Defendant] but also the Xcel Energy power grid,” among other alleged IT issues. Statement of Injury and Evidence [#8-1] at 2; Email to Secret Service 1 [#8-11] at 1. On the same date, he also expressed concern to other employees of Defendant, particularly the Network Administrator, about some of his IT security concerns. Email to Secret Service 1 [#8-11] at 2-4. Plaintiff further complained about Defendant’s initiative that would provide wireless access to homeless people, which Plaintiff opposed. Statement of Injury and Evidence [#8-1] at 3; Possible Whistleblowing Event [#8-20]. In early March 2023, Defendant suspended Plaintiff pending an investigation into allegations that he improperly accessed the email accounts of the DDES principal and his supervisor. CCR Compl. [#16-1]; LOD and Right to Sue Letter [#16-2]. On March 13, 2023, Defendant terminated Plaintiff’s employment, purportedly for violating its policies. Id. As a result of these allegations, Plaintiff asserts three claims: (1) Title VII sex discrimination; (2) Title VII retaliation; and (3) retaliation in violation of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, Public Law 107-174, Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 4 of 13
5 also known as the No FEAR Act. See [#16] at 2-3. In the present Motion [#20], Defendant seeks dismissal of all claims for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). 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)). “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)). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do[,] . . . [n]or does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (internal quotation marks omitted). “[D]ismissal under Rule 12(b)(6) is appropriate if the complaint alone is legally insufficient to state a claim.” Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1104-05 (10th Cir. 2017). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial[.]” Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999). Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 5 of 13
6 III. Analysis A. Title VII Plaintiff claims that Defendant violated Title VII by (1) discriminating against him because of his sex; and (2) impermissibly retaliating against him. Second Am. Compl. [#16] at 2-3. It is “an unlawful employment practice for an employer . . . to discharge any individual . . . because of such individual’s race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). When considering whether a plaintiff has plausibly alleged a Title VII disparate treatment claim, a court considers the allegations within the context of the claim’s elements; a court’s plausibility determination does not require a plaintiff to establish a prima facie case. Frappied v. Affinity Gaming Black Hawk, LLC, 966 F.3d 1038, 1050 (10th Cir. 2020) (citing Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (“While the 12(b)(6) standard does not require that [a p]laintiff establish a prima facie case in her complaint, the elements of [the] alleged cause of action help to determine whether [a p]laintiff has set forth a plausible claim.”)); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (holding that “an employment discrimination plaintiff need not plead a prima facie case of discrimination” to survive a motion to dismiss). 1. Sex Discrimination Defendant argues that Plaintiff’s Title VII sex discrimination claim should be dismissed because: (1) Plaintiff “has not presented evidence that the [Defendant] is an unusual employer that discriminates against males,” and (2) Plaintiff “has not presented evidence that he was terminated under circumstances giving rise to an inference of discrimination.”5 Motion [#20] at 5-7. 5 Defendant’s arguments that Plaintiff “has not presented evidence” misstates the legal standard under which Plaintiff’s claims must be evaluated on a Rule 12(b)(6) motion to dismiss. Cf. Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 6 of 13
7 The Court’s critical consideration in Title VII discrimination cases “is whether the plaintiff has demonstrated that the adverse employment action 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)). Ordinarily, the elements of a Title VII discrimination claim require a plaintiff to show “that (1) the plaintiff belongs to some protected class, (2) the plaintiff was qualified for the position or benefit at issue, (3) the plaintiff suffered an adverse employment action, and (4) the plaintiff was treated less favorably than others[.]” Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004) (citing Kendrick, 220 F.3d at 1220). Reverse discrimination cases, however, require something more. Argo v. Blue Cross Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006). “[A] plaintiff alleging reverse discrimination ‘must, in lieu of showing that he belongs to a protected group, establish background circumstances that support an inference that the defendant is one of those unusual employers who discriminates against the majority.’” Id. (quoting Notari v. Denver Water Dep’t, 971 F.2d 585, 589 (10th Cir. 1992)). Alternatively, a plaintiff may demonstrate “a reasonable inference that but for [the] plaintiff’s status the challenged decision would not have occurred.” Notari, 971 F.2d at 590. Swierkiewicz, 534 U.S. at 515 (noting that the Supreme Court “has never indicated that the requirements for establishing a prima facie case under McDonnell Douglas also apply to the pleading standard”). Plaintiff need not present any evidence at this stage of the proceeding. As noted above, 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, 40 F.3d at 340. The Court cannot consider “evidence” outside of the complaint and its attached exhibits when adjudicating a Rule 12(b)(6) unless special circumstances, not implicated here, exist. See Sutton, 173 F.3d at 1236. Nevertheless, the Court has construed Defendant’s statements as arguing that Plaintiff has not presented allegations sufficient to support his claims. Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 7 of 13
8 Plaintiff alleges that Defendant “openly engages in using gender as a sole basis to determine who is terminated from their position, regardless of the type and severity of the offense committed[.]” Second. Am. Compl. [#16] at 3. In support of the alleged gender discrimination, Plaintiff points to Defendant’s treatment of Ms. Sposato, the mother of Plaintiff’s daughter. Id.; CCR Compl. [#16-1]. Plaintiff alleges that despite being charged with child abuse for the assault of their daughter, Defendant “never disciplined or discharged [Ms. Sposato], despite the greater severity of her actions.” CCR Compl. [#16- 1]; see also Second Am. Compl. [#16] at 3 (“[Ms. Sposato] kept her job and had no disciplinary action taken against her”). Plaintiff only points to how one other individual was treated and does not make any allegations about Defendant’s staffing practices generally, such as Defendant’s “workforce composition, hiring practices, or treatment of men more generally.” Lewick v. Sampler Stores, Inc., No. 21-1251-DDC-ADM, 2022 WL 2966319, at *5-*6 (D. Kan. July 27, 2022). Thus, Plaintiff has failed to sufficiently allege background circumstances showing that Defendant discriminates against the majority. See id. (stating that, “[i]n cases where courts have held that a plaintiff adequately had alleged ‘background circumstances,’ the allegations were supported by facts apprising the court of the employer’s staffing practices generally”) (citing Reynolds v. Sch. Dist. No. 1, 69 F.3d 1523, 1535 (10th Cir. 1995); Perez v. Unified Govt, No. 10-CV-2107-JAR/GLR, 2011 WL 2038689, at *6 (D. Kan. May 25, 2011)). Similarly, other than the treatment of Ms. Sposato, Plaintiff has not provided any allegations to support a reasonable probability that, but for his status as a male, he would not have been terminated. See Second Am. Compl. [#16]; CCR Compl. [#16-1]. Plaintiff Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 8 of 13
9 appears to assert that Ms. Sposato was a similarly situated female employee who was treated more favorably. See id. However, the Court disagrees with this assertion because Plaintiff and Ms. Sposato had different positions and engaged in different conduct, and Plaintiff does not allege that they reported to the same supervisor. See id.; see also E.E.O.C. v. PVNF, LLC, 487 F.3d 790, 801 (10th Cir. 2007) (stating that “[i]ndividuals are considered ‘similarly-situated’ when they deal with the same supervisor, are subjected to the same standards governing performance evaluation and discipline, and have engaged in conduct of ‘comparable seriousness’”) (citing McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006)). Further, Plaintiff alleges that (1) he improperly accessed the emails of his supervisor and the DDES principal, (2) he was “suspended pending an investigation into [his] actions[,]” and (3) he was terminated because of his violation of Defendant’s policies. See CCR Compl. [#16-1] at 1-2. Therefore, Plaintiff has failed to adequately allege that, but for his status as a male, he would not have been terminated. Accordingly, the Court finds that Plaintiff has failed to plausibly allege a reverse sex discrimination claim and recommends that Plaintiff’s Title VII sex discrimination claim be dismissed without prejudice. See, e.g., Knight v. Mooring Cap. Fund, LLC, 749 F.3d 1180, 1190 (10th Cir. 2014) (stating that “pro se parties generally should be given leave to amend”). 2. Retaliation Defendant argues that Plaintiff’s Title VII retaliation claim should be dismissed because Plaintiff “has not pled facts sufficient to support a prima facie case of retaliation.” Motion [#20] at 7-10. Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 9 of 13
10 In addition to forbidding discrimination, 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) (citing 42 U.S.C. § 2003- e3(a)). A Title VII retaliation claim consists of three elements: “(1) that [the plaintiff] engaged in protected opposition to discrimination, (2) that a reasonable employee would have found the challenged action materially adverse, and (3) that a causal connection existed between the protected activity and the materially adverse action.” Argo, 452 F.3d at 1202 (internal citations omitted). Further, “these requirements do not change when a plaintiff’s underlying opposition is to reverse discrimination—for example, discrimination against men as a class. Title VII makes reverse discrimination unlawful, and employers have no more freedom to retaliate against those who oppose reverse discrimination than any other form of discrimination.” Id. However, the absence of a reference to unlawful discrimination in an employee’s protected opposition “can preclude a retaliation claim because an employer cannot engage in unlawful retaliation if it does not know that the employee has opposed or is opposing a violation of Title VII.” Petersen v. Utah Dep’t of Corr., 301 F.3d 1182, 1188 (10th Cir. 2002). This is because “[a]n employer’s action against an employee cannot be because of that employee’s protected opposition unless the employer knows the employee has engaged in protected opposition.” Id. (emphasis in original) (citations omitted). Therefore, if Defendant did not know that Plaintiff’s complaints were based on an opposition to sex discrimination, which would mean that Defendant did not know Plaintiff was engaging in protected opposition, Plaintiff’s retaliation claim is precluded. Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 10 of 13
11 Here, Plaintiff alleges that “Defendant engaged in retaliatory termination of employment of Plaintiff based solely on hearsay[.]” Second Am. Compl. [#16] at 3. In the Response [#26], Plaintiff clarifies that he is asserting that Defendant terminated him in retaliation for complaining “in the course of . . . conducting the responsibilities of his position,” “citing the failure to terminate[ ] Sposato,” and “using his First Amendment rights and parental rights regarding the assault on his daughter at DDES[.]” Response [#26] at 6. However, Plaintiff’s complaints to Defendant about Ms. Sposato, the bullying incident involving his daughter, and his IT concerns contain no mention that he was opposing sex discrimination, or any other form of discrimination prohibited by Title VII. See, e.g., DDES CORA Response [#8-8] at 2-4; Fear of Chromebook Incompetence [#8- 14]; Email Instructing No Response to DPS Data Theft [#8-17]; Email to DPS about Rebecca [#8-19]. Plaintiff ultimately filed a complaint of discrimination with the Colorado Civil Rights Division and EEOC. See CCR Compl. [#16-1]. However, this complaint was filed on May 16, 2023, which is after the asserted retaliation, i.e., his termination, occurred on March 13, 2023. See id. The Court thus finds that Plaintiff has failed to sufficiently allege that Defendant was aware that his complaints were in opposition to sex discrimination. Because Plaintiff has not alleged that Defendant knew he was engaging in protected opposition, the Court finds that Plaintiff has not plausibly alleged Title VII retaliation. Accordingly, the Court recommends that Plaintiff’s Title VII retaliation claim be dismissed without prejudice. See, e.g., Knight, 749 F.3d at 1190. Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 11 of 13
12 B. No FEAR Act Plaintiff also asserts a claim under the No FEAR Act. Second Am. Compl. [#16] at 2-3. Defendant argues that Plaintiff’s No FEAR Act claim should be dismissed for failure to state a claim because the statute “does not create a private right of action and in any event only applies to federal employees.” Motion [#20] at 10-11. The No FEAR Act requires that “Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws[,] . . . [and] that each Federal agency post quarterly on its public Web site, certain statistical data relating to Federal sector equal employment opportunity complaints filed with such agency[.]” Pub. L. No. 107-174, 116 Stat. 566 (2002). However, the No FEAR Act does not “create a private cause of action or substantive rights for litigants to pursue damages against the federal government, its officers, or employees.” Ash v. Buttigieg, No. CIV-22-371-R, 2022 WL 17225732, at *3 (W.D. Okla. Oct. 24, 2022) (emphasis added), aff’d, No. 22-6195, 2023 WL 6293823 (10th Cir. Sept. 27, 2023), cert. denied, No. 23-7018, 2024 WL 2805790 (U.S. June 3, 2024) (citing Glaude v. United States, 248 F. App’x 175, 177 (Fed. Cir. 2007); Mallard v. Brennan, No. 1:14-CV-00342-JAW, 2015 WL 2092545, at *9 (D. Me. May 5, 2015)). Because the No Fear Act provides no private cause of action, Plaintiff does not have a cause of action under the statute. Accordingly, the Court recommends that Plaintiff’s No FEAR Act claim be dismissed with prejudice. See, e.g., Serna v. Denver Police Dep’t, 58 F.4th 1167, 1172 (10th Cir. 2023) (holding that dismissal with prejudice was appropriate because “an amendment . . . would not change the fact that the statute does not grant [the plaintiff] a private cause of action”). Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 12 of 13
13 IV. Conclusion Based on the foregoing, IT IS HEREBY RECOMMENDED that the Motion [#20] be GRANTED, and that Plaintiff’s Title VII claims be DISMISSED without prejudice and his No Fear Act claim be DISMISSED with prejudice. IT IS FURTHER ORDERED that any party may file objections within 14 days of service of this Recommendation. In relevant part, Fed. R. Civ. P. 72(b)(2) provides that, “within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations. A party may respond to another party’s objections within 14 days after being served with a copy.” “[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 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). The objection must be “sufficiently specific to focus the district court’s attention on the factual and legal issues that are truly in dispute.” Id. “[A] party who fails to make a timely objection to the magistrate judge’s findings and recommendations waives appellate review of both factual and legal questions.” Morales- Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). Dated: August 30, 2024 BY THE COURT: Kathryn A. Starnella United States Magistrate Judge Case No. 1:23-cv-02956-SKC-KAS Document 28 filed 08/30/24 USDC Colorado pg 13 of 13
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