Vazquez v. SRS-AOT-American Roofing Supply et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-00378-PAB-NRN
MIGUEL A. VAZQUEZ,
Plaintiff,
v.
SRS DISTRIBUTION INC.,
LUIS GONZALEZ,
TRACY SPENCE, and
DAVID FALBO,
Defendants.
REPORT AND RECOMMENDATION ON
DEFENDANTS’ MOTION TO DISMISS (ECF No. 19)
N. REID NEUREITER
United States Magistrate Judge
This matter comes before the Court on Defendants SRS Distribution Inc. (“SRS”),
Luis Gonzalez (“Gonzalez”), Tracy Spence (“Spence”), and David Falbo’s (“Falbo”)
(together, “Defendants”) Motion to Dismiss Plaintiff Miguel A. Vazquez’s (“Plaintiff”) First
Amended Complaint (“FAC”), filed December 1, 2025. ECF No. 19. No response was
filed by Plaintiff. The Court heard oral argument on February 18, 2026. See ECF No. 30.
The Court has taken judicial notice of the Court’s file, considered the applicable
Federal Rules of Procedure and case law. Now, being fully informed and for the
reasons discussed below, the Court RECOMMENDS that Defendants’ Motion to
Dismiss, ECF No. 19, be GRANTED.
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I. 	FACTUAL BACKGROUND & PROCEDURAL HISTORY1
Plaintiff initially filed this lawsuit on February 4, 2025,2 asserting a claim for
discrimination under the Age Discrimination in Employment Act (the “ADEA”). ECF No.
1. On February 7, 2025, Magistrate Judge Richard T. Gurley ordered Plaintiff to cure
certain deficiencies and amend his initial complaint. Amongst those deficiencies was
Plaintiff’s failure to attach a copy of his Notice of Right to Sue (“NRTS”) from the Equal
Employment Opportunity Commission (the “EEOC”) as to his ADEA claim. On March
14, 2025, Plaintiff filed his FAC, ECF No. 7. Plaintiff amended the initial complaint to
add more details regarding his age discrimination claim and attached a copy of the
NRTS from the EEOC, dated August 28, 2024.3 Id. at 6.
Plaintiff was employed with SRS for about 24 years. ECF No, 7 at 4. On March
14, 2023, he was allegedly “fired from [his] job for being ‘too old.’” Plaintiff was
terminated shortly before he was about to turn 61 years old. He alleges that he had
good work performance; that he was never late or missed work and would be willing to
perform tasks that his coworkers could not or would not want to do. Plaintiff alleges that
1 Any citations to docketed materials are to the page number in the CM/ECF
header, which sometimes differs from a document’s internal pagination.
2 In this case, the Court takes judicial notice of its records regarding the date and
time that Plaintiff filed the initial complaint in this case. Federal courts may take judicial
notice of their own records. See A Just Cause v. U. S., 45 F. Supp. 3d 1258, 1261 n.1
(D. Colo. 2014) (taking judicial notice of the records of the Office of the Clerk of Court);
St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir.
1979) (“[A] court may, [s]ua sponte, take judicial notice of its own records and preceding
records if called to the court’s attention by the parties.”).
3 The Court takes judicial notice of the NRTS because it was attached to the
FAC. In evaluating a Rule 12(b)(6) motion to dismiss, the Court may consider
documents incorporated by reference, documents referred to in the complaint that are
central to the claims, and matters of which a court may take judicial notice. Gee v.
Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010)
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on March 14, 2023, he was explicitly told by Gonzalez that Gonzalez, along with Falbo
and Spence, had all come to an agreement to fire Plaintiff for his age and that they
needed new people. Id. Plaintiff also alleges that in addition to being unlawfully
terminated due to his age, he was denied his vacation pay-out of three weeks upon
termination as well as his stocks in the company. In terms of relief, Plaintiff requests (1)
compensation for his vacation time; (2) his stocks; (3) three paychecks for every year of
employment; (4) $200,000 in compensation for being discriminated against; and (5)
$100,000 for health issues caused by his termination. Id. at 5.
Defendants argue that Plaintiff’s lawsuit suffers from four fatal flaws. First, they
argue that the initial complaint was not timely filed within 90 days of receiving the NRTS
from the EEOC. Second, Defendants contend that the FAC fails to state a claim against
the individual defendants as none were Plaintiff’s employer. Third, as to the individual
defendants, Defendants argue that Plaintiff failed to exhaust his administrative
remedies. Finally, Defendants argue that the suit should be dismissed for failure to
properly serve. ECF No. 19 at 3.
Because the Court agrees that Plaintiff’s failure to file his lawsuit within 90 days
of the NRTS is fatal to Plaintiff’s ADEA claim, the Court does not reach the remainder of
Defendants’ arguments. This is discussed in further detail below.
II. 	STANDARDS FOR DISMISSAL
a. 	Federal Rule of Civil Procedure 12(b)(6)
Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure
to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The court’s
function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties
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might present at trial, but to assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted). “A court
reviewing the sufficiency of a complaint presumes all of plaintiff’s factual allegations are
true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935
F.2d 1106, 1109 (10th Cir. 1991). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to
dismiss, means that the plaintiff pleaded facts which allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. The
Iqbal evaluation requires two prongs of analysis. First, the court identifies “the
allegations in the complaint that are not entitled to the assumption of truth,” that is,
those allegations which are legal conclusions, bare assertions, or merely conclusory. Id.
at 679–81. Second, the court considers the factual allegations “to determine if they
plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 679.
A statute of limitations may form the basis for dismissal. “If the complaint sets
forth dates that appear, in the first instance, to fall outside of the statutory limitations
period, then the defendant may move for dismissal under rule 12(b)(6).” SFF-TIR, LLC
v. Stephenson, 250 F. Supp. 3d 856, 997 (N.D. Okla. 2017) (citations omitted). If, from
the complaint, “the dates on which the pertinent acts occurred are not in dispute, [then]
the date a statute of limitations accrues is . . . a question of law” suitable for resolution
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at the motion to dismiss stage. Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir.
2022) (quoting Edwards v. Int’l Union, United Plant Guard Workers of Am., 46 F.3d
1047, 1050 (10th Cir. 1995)); see also Jiying Wei v. Univ. of Wyo. Coll. of Health Sch.
Pharmacy, 759 F. App’x 735, 740 (10th Cir. 2019) (“[I]t is appropriate to resolve a
statute of limitations defense on a Rule 12(b)(6) motion ‘when the dates given in the
complaint make clear that the right sued upon has been extinguished.’”) (quoting Sierra
Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 671 (10th Cir. 2016)). “The plaintiff may
counter this motion with an assertion that a different statute of limitations or an equitable
tolling doctrine applies to bring the suit within the statute; the Tenth Circuit has not
clarified whether this assertion must be pled with supporting facts in the complaint or
may be merely argued in response to the motion.” SFF-TIR, LLC, 250 F. Supp. 3d at
997 (citation omitted). “In any event, where the face of the complaint reveals that the
action is beyond the statute of limitations, and there are no allegations in the complaint
or response to the motion that would implicate tolling, the complaint may be disposed of
on a motion to dismiss.” Jones v. United Ass’n of Journeymen, No. 4:20-cv-00585-CRK-
CDL, 2024 WL 1285546, at *9 n.14 (N.D. Okla. Mar. 26, 2024) (citing Jones v. Bock,
549 U.S. 199, 215 (2007)).
b. Pro Se Plaintiff
The Court must construe the FAC and other papers filed by Plaintiff liberally
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520–21 (1972); Hall, 935 F.2d at 1110. However, the Court should not be an advocate
for a pro se litigant. See Hall, 935 F.2d at 1110; Craig v. McCollum, 590 F. App’x 723,
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726 (10th Cir. 2014) (“Our liberal construction of pro se petitions does not exempt them
from the rules of procedure binding the petitions of other litigants.”) (citation omitted).
III. 	ANALYSIS
A plaintiff must initiate litigation on an ADA claim within ninety days from the date
he receives an NRTS from the EEOC. 42 U.S.C. §§ 2000e–5(f)(1), 12117(a); Ombe v.
Cook, 861 F. App’x 182, 184 (10th Cir. 2021) (“‘[O]nce the EEOC determines not to
pursue the charge, the employee has ninety days from receipt of the right to sue letter in
which to file suit.’”) (quoting E.E.O.C. v. W.H. Braum, Inc., 347 F.3d 1192, 1198 (10th
Cir. 2003)). Indeed, “[t]hese timing requirements are prerequisites to a civil suit.” Croy v.
Cobe Labs., Inc., 345 F.3d 1199, 1202 (10th Cir. 2003). “Compliance with the ninety-
day filing requirement is not a jurisdictional prerequisite, but it is a statutory precondition
to suit that functions like a statute of limitations.” Stambaugh v. Kan. Dep’t of Corr., 844
F. Supp. 1431, 1433 (D. Kan. 1994) (citing Gonzalez–Aller Balseyro v. GTE Lenkurt,
Inc., 702 F.2d 857, 859 (10th Cir. 1983)). “The burden rests with the plaintiff to prove
this condition precedent when the defendant denies that the condition has been
fulfilled.” Id. (citation omitted).
The 90-day time limit “is to be strictly construed,” Noe v. Ward, 754 F.2d 890,
892 (10th Cir. 1985), and a complaint “filed even one day late must be dismissed,”
Melendez v. Singer–Friden Corp., 329 F.2d 521, 523 (10th Cir. 1976). “‘Procedural
requirements established by Congress for gaining access to the federal courts are not
to be disregarded by courts out of a vague sympathy for particular litigants.’” Kaiser v.
Colo. Dep’t of Corr., No. 10-cv-01837-RBJ-CBS, 2012 WL 762227, at *7 (D. Colo. Jan.
4, 2012) (quoting Baldwin Cnty. Welcome Center v. Brown, 466 U. S. 147, 152 (1984)),
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report and recommendation adopted, 2012 WL 764462 (D. Colo. Mar. 7, 2012), aff’d,
504 F. App’x 739 (10th Cir. 2012). “Where a complaint reflects on its face that the
statute of limitations has expired, dismissal pursuant to Rule 12(b)(6) is proper.” Ayoola
v. OG&E Energy Corp., No. CIV-13-804-D, 2014 WL 111144, at *1 (W.D. Okla. Jan. 10,
2014) (citing Solomon v. HSBC Mortgage Corp., 395 F. App’x 494, 497 (10th Cir.
2010)).
The NRTS, attached to Plaintiff’s FAC, states, “Issued On: August 28, 2024.”
ECF No. 7 at 6. The “To” line on the NRTS includes Plaintiff’s mailing address. Id. The
NRTS then states, “lf you choose to file a lawsuit against the respondent(s) on this
charge under federal law in federal or state court, your lawsuit must be filed WITHIN
90 DAYS of your receipt of this notice. Receipt generally occurs on the date that you
(or your representative) view this document.” Id. (emphasis in original). It further states,
“Receipt generally means the date when you (or your representative) opened this email
or mail.” Id.
As Defendants note, courts in this Circuit apply a presumption that a plaintiff
receives a right-to-sue letter three to five days after issuance. Shelby v. Mercy Reg’l
Health Ctr., 2009 WL 1067309, at *2 (D. Kan. 2009) (citing Lozano v. Ashcroft, 258 F.3d
1160, 1164 (10th Cir. 2001)); see also Witt v. Roadway Express, 136 F.3d 1424, 1429–
30 (10th Cir. 1998) (noting the possibility of a five-day presumption); Jarrett v. U.S.
Sprint Comm. Co., 22 F.3d 256, 259 (10th Cir. 1994) (applying a three day presumption
pursuant to Fed. R. Civ. P. 6). Applying the outer limit of this presumption, the deadline
for Plaintiff to file this lawsuit would have been 95 days after August 28, 2024, which
was December 1, 2024. Plaintiff filed the initial complaint on February 4, 2025, over two
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months late. There is no factual dispute regarding the date Plaintiff received the NRTS
and the date of filing of this lawsuit.
Additionally, there are no allegations in the FAC, and Plaintiff has raised no
arguments, that would potentially implicate equitable tolling.4 Plaintiff’s ADEA claim is
therefore time-barred and should be dismissed with prejudice. See McGowan v. Wal-
Mart Stores, 757 F. App’x 786, 788 n.3 (10th Cir. 2019); Pinnock v. Teletech Gov’t
Sols., LLC, No. 24-cv-03290-NRN, 2025 WL 2095346, at *7 (D. Colo. Apr. 17, 2025).
Because this issue is determinative, the Court does not reach Defendants’ remaining
arguments for dismissal.
In addition to Plaintiff’s ADEA claim, Plaintiff alleges that he was denied his
vacation pay-out of three weeks upon termination, as well as certain stocks he held in
the company. ECF No. 7 at 4. These additional facts would constitute a distinct cause of
action from Plaintiff’s ADEA discrimination claim, such as breach of contract for
example. However, the sole claim brought by Plaintiff in his FAC is for age
discrimination. If Plaintiff wishes to file a motion for leave to amend his FAC to include
these additional claims, he may do so.
IV. 	CONCLUSION
For the reasons set forth above, it is hereby RECOMMENDED that Defendants’
Motion to Dismiss Plaintiff Miguel A. Vazquez’s First Amended Complaint, ECF No. 19,
be GRANTED.
4 See, e.g., Witt, 136 F.3d at 1430 (explaining that this Circuit uses a high bar for
equitable tolling of the 90-day filing limit under which the limit “will be tolled only if there
has been active deception of the claimant regarding procedural requirements.”) (citing
to Jarrett, 22 F.3d at 260–61).
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NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148–53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412–13 (10th Cir. 1996).
Dated at Denver, Colorado this 31st Day of March 2026
_______________________
N. Reid Neureiter
United States Magistrate Judge
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