Roman v. Amazon.com, Inc.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 25-cv-00771-PAB-CYC
KENTRELL DEWAYNE ROMAN,
Plaintiff,
v.
AMAZON.COM, INC., a/k/a Amazon,
Defendant.
ORDER
This matter comes before the Court on Defendant’s Motion to Dismiss Pursuant
to Rule 12(b)(3) or to Transfer Venue, or, in the Alternative, to Dismiss Plaintiff’s
Second Amended Employment Discrimination Complaint Pursuant to Rule 12(b)(6)
[Docket No. 31]. Plaintiff Kentrell Dewayne Roman filed a response. Docket No. 55.
Defendant Amazon.com, Inc. (“Amazon”) filed a reply. Docket No. 56. The Court has
jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND1
Mr. Roman began working for Amazon on April 7, 2023. Docket No. 17 at 4, ¶ 1.
He worked at a warehouse located in Baton Rouge, Louisiana. Id., ¶ 3. Mr. Roman is
Black, male, gay, and has autism. Id., ¶ 5. Mr. Roman alleges that, while working at
Amazon, various co-workers and supervisors treated him in ways that he believes
1 The facts below are taken from plaintiff’s second amended complaint, Docket
No. 17, and are presumed to be true, unless otherwise noted, for purposes of ruling on
defendant’s motion to dismiss.
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constituted discrimination or retaliation based on his race, gender, sexual identity, and
disability status. See generally id. at 4-10, ¶¶ 7-43.2
II. LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk,
L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim that “allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the court must accept the
well-pled allegations of the complaint as true and construe them in the light most
favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002),
conclusory allegations are not entitled to be presumed true. Iqbal, 556 U.S. at 681.
However, so long as the plaintiff offers sufficient factual allegations such that the right to
relief is raised above the speculative level, she has met the threshold pleading
standard. See, e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282,
1286 (10th Cir. 2008).
Because Mr. Roman is proceeding pro se, the Court will construe his pleadings
liberally without serving as their advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
2 Because the Court finds that some of Mr. Roman’s claims are premised on
statutes and regulations that do not apply to his circumstances and the remainder of Mr.
Roman’s claims are time-barred by a failure to file a timely complaint with the Equal
Employment Opportunity Commission (“EEOC”), the Court does not need to discuss Mr.
Roman’s factual allegations in any greater detail.
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III. ANALYSIS
Mr. Roman brings five claims against Amazon. The first two claims allege that
the sexual harassment and hostile work environment Mr. Roman experienced constitute
a violation of 41 C.F.R. § 60-20.8. Docket No. 17 at 10-12, ¶¶ 44-51. The third claim
alleges color- and disability-based discrimination in violation of the Title VII of the Civil
Rights Act of 1964 Americans with Disabilities Act (“ADA”). Id. at 12, ¶¶ 52-55. The
fourth claim alleges retaliation under the Family Medical Leave Act (“FMLA”), 29 U.S.C.
§ 2601 et seq. Id. at 12-13, ¶¶ 56-59. The fifth cause of action alleges disparate
treatment under 29 U.S.C. § 1607.11. Id. at 13-14, ¶¶ 60-65. Because there is no
section 1607 of Title 29 of the United States Code, the Court understands the fifth claim
to allege a violation of 29 C.F.R. § 1607.11, which deals with employee selection
procedures. Id.
Amazon argues that venue is not proper in the District of Colorado because Mr.
Roman’s complaint only makes allegations regarding events in Baton Rouge, Louisiana.
Docket No. 31 at 5-9. Amazon asks the Court to either dismiss the claims for lack of
venue or to transfer the case to the Middle District of Louisiana. Id. In the alternative,
Amazon asks the Court to dismiss Mr. Roman’s claims pursuant to Federal Rule of Civil
Procedure 12(b)(6) for failure to state a claim. Id. at 9-16. The Court finds that Mr.
Roman has failed to state a claim and will dismiss his complaint on that basis. The
Court therefore will not reach Amazon’s arguments regarding venue.
A. Claims One and Two: Sexual Harassment and Hostile Work
Environment under 41 C.F.R. § 60-20.8
Mr. Roman’s first two claims allege sexual harassment and hostile work
environment in violation of 41 C.F.R. § 60-20.8. Docket No. 17 at 10-12, ¶¶ 44-51.
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The purpose of the part of the Code of Federal Regulations in which § 60-20.8 is found
is to “set forth specific requirements that covered Federal Government contractors and
subcontractors, including those performing work under federally assisted construction
contracts (“contractors”), must meet in fulfilling their obligations under Executive Order
11246, as amended, to ensure nondiscrimination on the basis of sex in employment.”
41 C.F.R. § 60.20.1 (footnote omitted). The Court finds that 41 C.F.R. § 60-20.8 applies
to federal government contractors and subcontractors. See Anderson v. Am. Foods
Grp. LLC, 2024 WL 5200449, at *1 (E.D. Wis. Dec. 23, 2024), aff'd, 2026 WL 161340
(7th Cir. Jan. 21, 2026); Tapp v. Bob Evans Restaurants, LLC, 2019 WL 2123207, at *4
(N.D. Ohio May 15, 2019). Mr. Roman has not asserted that the sexual harassment
and hostile work environment he experienced related in any way to work by Amazon as
a contractor to the federal government. Moreover, there is no basis for finding that 41
C.F.R. § 60-20.8 authorizes a private right of action under which Mr. Roman could bring
suit. Instead, the regulatory scheme contemplates enforcement by the Office of Federal
Contract Compliance Programs at the Department of Labor in coordination with the
Solicitor of Labor and the Department of Justice. See 41 C.F.R. § 60-1.26. Thus, the
Court finds that Mr. Roman’s claims under 41 C.F.R. § 60-20.8 fail, and the Court will
dismiss Mr. Roman’s first two claims without prejudice.3
B. Claim Three: Discrimination and Retaliation under 42 U.S.C. § 2000e,
12101, and 12203
Mr. Roman’s third claim invokes the anti-discrimination provisions of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the ADA, 42 U.S.C.
3 To the extent that Mr. Roman actually meant to allege sexual harassment and
hostile work environment claims pursuant to Title VII or the ADA, the Court finds that the
claims are time-barred for the same reasons discussed in the analysis of claim 3.
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§ 12101 et seq., and the anti-retaliation provisions of the ADA, 42 U.S.C. § 12203 et
seq. Docket No. 17 at 12, ¶¶ 52-55. A Colorado plaintiff bringing claims under Title VII
or the ADA must first file a charge with the EEOC within 300 days of the alleged
unlawful practice. Bullington v. United Air Lines, Inc., 186 F.3d 1301, 1310 (10th Cir.
1999); Proctor v. United Parcel Serv., 502 F.3d 1200, 1206 (10th Cir. 2007). A plaintiff
may not bring an action based upon claims that were not part of a timely-filed EEOC
charge for which the plaintiff has received a right-to-sue letter. Simms v. Okla. ex rel.
Dept. of Mental Health and Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.
1999), abrogated on other grounds as recognized in Eisenhour v. Weber Cnty., 744
F.3d 1220, 1227 (10th Cir. 2014).
Mr. Roman’s complaint alleges discriminatory and retaliatory events that took
place between April 2023 and November 2023. See Docket No. 17 at 4-7, ¶¶ 1, 10, 13,
14, 22-23. Mr. Roman attaches to his complaint a copy of the charge of discrimination
he filed with the EEOC and the Colorado Civil Rights Division. See Docket No. 17-1 at
2-3.4 Mr. Roman signed and dated this document on December 1, 2024. Id. at 3. The
document lists the last date of discrimination as December 8, 2023. Id. at 2. Thus, Mr.
Roman failed to submit his charge of discrimination with the EEOC within 300 days of
4 The Court considers this document outside of the pleadings on a motion to
dismiss because, “[n]otwithstanding the usual rule that a court should consider no
evidence beyond the pleadings on a Rule 12(b)(6) motion to dismiss, the district court
may consider documents referred to in the complaint if the documents are central to the
plaintiff's claim and the parties do not dispute the documents' authenticity.” Alvarado v.
KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007). The Court finds that these
documents, which Mr. Roman attached to his complaint, are central to the complaint.
Amazon does not dispute the authenticity of the document; instead, Amazon relies on
the document as a basis for dismissing the complaint. See Docket No. 31 at 10-11.
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the alleged unlawful practice. Therefore, he cannot bring a claim based on these
events, Simms, 165 F.3d at 1326, and the Court will dismiss this claim with prejudice.5
C. Claim Four: FMLA Retaliation under 29 U.S.C. § 2615
Mr. Roman alleges that Amazon violated the FMLA. Docket No. 17 at 12-13,
¶¶ 56-59. Specifically, Mr. Roman cites to a portion of the law stating that “[i]t shall be
unlawful for any employer to discharge or in any other manner discriminate against any
individual for opposing any practice made unlawful by this subchapter.” See id. at 13,
¶ 57 (quoting 29 U.S.C. § 2615(a)(2)). The Tenth Circuit has recognized claims under
this part of the FMLA as being made under the “retaliation or discrimination” theory.
Smith v. Diffee Ford-Lincoln-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002).
“To establish a prima facie case of FMLA retaliation, an employee must prove
that [he]: (1) availed [himself] of a protected right under the FMLA; (2) was adversely
affected by an employment decision; and (3) that there was a causal connection
between the two actions.” Robert v. Bd. of Cnty. Comm'rs of Brown Cnty., Kans., 691
F.3d 1211, 1219 (10th Cir. 2012) (citing Morgan v. Hilti, 108 F.3d 1319, 1325 (10th Cir.
1997)). Amazon argues that Mr. Roman does not allege any facts that would support
an FMLA interference or retaliation claim. The Court agrees. “[The FMLA] entitles
eligible employees to take up to 12 work weeks of unpaid leave per year.” Coleman v.
Ct. of Appeals of Maryland, 566 U.S. 30, 34 (2012). “An employee may take leave
under the FMLA for: (A) ‘the birth of a son or daughter . . . in order to care for such son
or daughter,’ (B) the adoption or foster-care placement of a child with the employee, (C)
the care of a ‘spouse . . . son, daughter, or parent’ with ‘a serious health condition,’ or
5 The Court dismisses this case with prejudice because it is time-barred. See
Gee v. Pacheco, 627 F.3d 1178, 1195 (10th Cir. 2010).
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(D) the employee's own serious health condition when the condition interferes with the
employee's ability to perform at work.” Id. Nowhere in his complaint does Mr. Roman
allege facts that indicate he was availing himself of a right protected under the FMLA,
such as seeking to take leave under the FMLA or contesting Amazon’s FMLA policies.
Thus, the Court finds that Mr. Roman has failed to state a claim for FMLA retaliation.
The Court will dismiss this claim without prejudice.6
D. Claim 5: Disparate Treatment under 29 C.F.R. § 1607.11
Mr. Roman alleges that he experienced disparate treatment by Amazon. Docket
No. 17 at 13-14, ¶¶ 60-65. As explained earlier, the Court understands Mr. Roman to
assert that this treatment is a violation of 29 C.F.R. § 1607.11, rather than the non-
existent “29 U.S.C. § 1607.11” he cites in the complaint. Part 1607.11 of Title 29 of the
Code of Federal Regulations states:
The principles of disparate or unequal treatment must be distinguished from the
concepts of validation. A selection procedure—even though validated against
job performance in accordance with these guidelines—cannot be imposed upon
members of a race, sex, or ethnic group where other employees, applicants, or
members have not been subjected to that standard. Disparate treatment occurs
where members of a race, sex, or ethnic group have been denied the same
employment, promotion, membership, or other employment opportunities as
have been available to other employees or applicants. Those employees or
applicants who have been denied equal treatment, because of prior
discriminatory practices or policies, must at least be afforded the same
opportunities as had existed for other employees or applicants during the period
of discrimination. Thus, the persons who were in the class of persons
discriminated against during the period the user followed the discriminatory
practices should be allowed the opportunity to qualify under less stringent
selection procedures previously followed, unless the user demonstrates that the
increased standards are required by business necessity. This section does not
prohibit a user who has not previously followed merit standards from adopting
merit standards which are in compliance with these guidelines; nor does it
preclude a user who has previously used invalid or unvalidated selection
6 To the extent that Mr. Roman actually meant to allege a retaliation claim under
Title VII or the ADA, the Court finds that the claim is time-barred for the same reasons
discussed in the analysis of claim 3.
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procedures from developing and using procedures which are in accord with these
guidelines.
Id. This provision is located in a part of the Code of Federal Regulations that provides
guidelines governing “tests and other selections procedures which are used as a basis
for any employment decisions.” Id., § 1607.2(B). Although Mr. Roman alleges that he
was treated differently than other employees based on various protected characteristics,
see Docket No. 17 at 14, ¶ 65, he does not allege any facts that Amazon discriminated
against him through the use of a test or selection procedure in making employment
decisions. The Court therefore finds that this claim fails to state a cause of action
against Amazon pursuant to Rule 12(b)(6) and will dismiss it without prejudice.
IV. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion to Dismiss Pursuant to Rule 12(b)(3) or to
Transfer Venue, or, in the Alternative, to Dismiss Plaintiff’s Second Amended
Employment Discrimination Complaint Pursuant to Rule 12(b)(6) [Docket No. 31] is
GRANTED in part. It is further
ORDERED that the first, second, fourth, and fifth claims of Mr. Roman’s second
amended employment discrimination complaint, Docket No. 17, are DISMISSED
without prejudice. It is further
ORDERED that the third claim of Mr. Roman’s second amended employment
discrimination complaint, Docket No. 17, is DISMISSED with prejudice. It is further
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ORDERED that this case is closed.
DATED February 23, 2026.
BY THE COURT:
s/ Philip A. Brimmer___________
PHILIP A. BRIMMER
Chief United States District Judge
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