Reveles v. Catholic Health Initiatives

Filing 42

ORDER GRANTING DEFENDANT'S Motion to Dismiss 41 . ORDERED: 1. The stay of proceedings 37 is LIFTED; 2. CHI's Motion to Dismiss 14 is GRANTED as follows: a. Reveles's First and Second Claims for Relief (Title VII sex dis crimination and sexual harassment) are DISMISSED WITH PREJUDICE; b. Reveles's Third Claim for Relief (Title VII retaliation) is DISMISSED WITHOUT PREJUDICE for failure to exhaust remedies; and c. Reveles's Fourth through Ninth Claims for R elief are DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3); and 3. The Clerk shall enter judgment consistent with this dismissal and shall terminate this case. The parties shall bear their own costs, by Judge William J. Martinez on 6/21/2017. (dhans, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 16-cv-2561-WJM-CBS
VALERIE REVELES, an individual,
Plaintiff,
v.
CATHOLIC HEALTH INITIATIVES, a Colorado non-profit corporation,
Defendant.

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

Plaintiff Valerie Reveles (“Reveles”) sues her employer, Catholic Health
Initiatives (“CHI”), for sex discrimination and retaliation in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (ECF No. 1.) From the same set of
facts underlying her Title VII claims, Reveles also alleges a number of state-law claims,
namely, violation of the Colorado Anti-Discrimination Act, Colo. Rev. Stat. §§ 24-34-401
et seq.; negligent supervision and retention; respondeat superior; and intentional
infliction of emotional distress.
Currently before the Court is CHI’s Motion to Dismiss, which argues that all
claims must be dismissed for various reasons. (ECF No. 14.) As explained in detail
below, the Court agrees that Reveles’s two theories of Title VII liability must be
dismissed. Because those are the only claims over which the Court has original
jurisdiction, the Court declines to exercise supplemental jurisdiction over her state-law
claims and therefore does not reach CHI’s arguments regarding those claims, which will

be dismissed without prejudice. 1
I. LEGAL STANDARD
A.

Rule 12(b)(1) Versus Rule 12(b)(6)
At the outset, the parties raise a complicated question of the proper legal

standard to apply to CHI’s motion, and particularly whether this Court may consider
materials beyond Reveles’s complaint when evaluating whether her claims may go
forward. As will become clear below, CHI’s principal argument is that Reveles did not
file a timely charge of discrimination with the EEOC, or at least did not file a charge
fairly encompassing the allegations in her complaint. CHI characterizes this as a defect
going to subject matter jurisdiction and thus invokes Federal Rule of Civil Procedure
12(b)(1). (ECF No. 14 at 5.) When a motion is brought under that rule, a court may
usually consider materials beyond the complaint, such as exhibits and affidavits
submitted by the defendant. See Holt v. United States, 46 F.3d 1000, 1002–03 (10th
Cir. 1995). CHI also argues that Reveles’s claims fail under a Rule 12(b)(6) analysis,
which typically limits the Court to considering only the complaint. (ECF No. 14 at 5–6.)
The Tenth Circuit has certainly held that “a plaintiff’s exhaustion of his or her
administrative remedies [including pursuing an EEOC charge] is a jurisdictional
prerequisite to suit under Title VII—not merely a condition precedent to suit.” Shikles v.
1

Reveles’s response brief runs to 31 pages, not counting the signature block or
certificate of service. (See ECF No. 16.) The undersigned’s page limit for this kind of brief is 15
pages. See WJM Revised Practice Standard III.C.1. CHI, in its reply brief, points out this fact
and suggests that the Court strike Reveles’s response brief. (ECF No. 29 at 1 n.1.) However,
Reveles filed her response brief when this case was still drawn solely to Magistrate Judge
Shaffer, who has no specific page limitations. See CBS Civil Practice Standards, Pretrial
Procedures, § IV. The parties subsequently chose not to consent to Magistrate Judge
jurisdiction, and so the case was drawn to the undersigned, eight days after Reveles filed her
brief. (ECF No. 20.) Although the undersigned at times enforces his Practice Standards even
against papers filed before the undersigned becomes the presiding judge, striking Reveles’s
response would not be in the interest of justice in the present circumstances.

2

Sprint/United Mgmt. Co., 426 F.3d 1304, 1317 (10th Cir. 2005). But later Tenth Circuit
decisions have limited this holding to situations in which a plaintiff entirely failed to file
anything like a charge with the EEOC. See Jones v. Needham, 856 F.3d 1284, 1289
(10th Cir. 2017) (“our recent cases suggest that exhaustion in this context might be
better characterized as a [non-jurisdictional] claims-processing obligation”); Gad v.
Kansas State Univ., 787 F.3d 1032, 1039–41 (10th Cir. 2015) (criticizing Shikles as outof-step with various Supreme Court rulings and finding that certain tasks within the
process of filing a charge are non-jurisdictional).
Moreover, specifically as to CHI’s timeliness arguments, the Supreme Court itself
has declared that the inquiry is not jurisdictional: “a timely charge of discrimination with
the EEOC is not a jurisdictional prerequisite to suit in federal court.” Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393 (1982). The Tenth Circuit thus treats timeliness
as a prerequisite to suit and places the burden of proof on the plaintiff, but timeliness is
not a jurisdictional requirement “and is thus subject to waiver, estoppel, and tolling when
equity requires.” Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1167 (10th Cir. 2007).
Given all of this, the Court concludes that CHI raises arguments that must be
evaluated under Rule 12(b)(6), not Rule 12(b)(1). But this does not prevent the Court
from considering the lone outside-the-pleadings document that CHI proffers, namely,
Reveles’s actual Charge of Discrimination filed with the EEOC on July 6, 2016
(“Charge”). (See ECF No. 14-1.) The Court may consider a document outside the
pleadings even in a Rule 12(b)(6) analysis if the document is (1) “mentioned in the
complaint,” (2) “central to [the] claims [at issue],” and (3) not challenged as inauthentic.

3

Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013). 2 Here, the
Charge is “mentioned” because Reveles alleges the existence of it and claims that she
“satisfied her statutory obligation to exhaust administrative remedies” by filing it. (ECF
No. 1 ¶ 11.) The Charge is also “central” because exhaustion is a prerequisite to
maintaining this suit and Reveles bears the burden of proof on this matter. See Montes,
497 F.3d at 1167. Finally, Reveles does not challenge the Charge as inauthentic.
Thus, the Court may consider the Charge while remaining within the restraints of a
proper Rule 12(b)(6) analysis.
B.

Request for Conversion to Summary Judgment
Reveles, however, takes the rather unusual step of: (1) urging this Court to

convert CHI’s motion to one for summary judgment (the usual course when matters
outside the pleadings are presented in a Rule 12(b)(6) context, see Fed. R. Civ. P.
12(d)); yet also (2) arguing that genuine issues of material fact preclude summary
judgment; and then (3) claiming inability to present facts essential to justify her
opposition (see Fed. R. Civ. P. 56(d)) and asking for additional time to take discovery. 3
(ECF No. 16 at 2, 10–15, 30–31; see also ECF No. 16-4 (Reveles’s counsel’s Rule
56(d) affidavit).) This appears to be a tactical move motivated by her hope that the
Court will consider materials even further beyond her pleadings than her EEOC Charge.

2

“If the rule were otherwise, a plaintiff with a deficient claim could survive a motion to
dismiss simply by not attaching a dispositive document upon which the plaintiff relied.” GFF
Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1385 (10th Cir. 1997); see also
Magellan Int’l Corp. v. Salzgitter Handel GmbH, 76 F. Supp. 2d 919, 923 (N.D. Ill. 1999) (“it
would be totally wasteful to uphold a claim on the false premise created by less than complete
documentation when the delayed consideration of the remaining documents would lead to
dismissal of that claim”).
3

Discovery has not commenced in this case. (See ECF No. 37 (staying discovery
pending resolution of CHI’s motion to dismiss).)

4

Given that well-established case law permits the Court to consider the Charge
without straying from a proper Rule 12(b)(6) analysis, it is not clear that the Court can
nonetheless declare that a motion to dismiss will be treated as a motion for summary
judgment simply because Reveles now wants to, in effect, supplement her complaint—
and thereby make it a moving target. CHI conferred with the Reveles before filing its
motion to dismiss, and Reveles presumably refused to amend or withdraw any portion
of her complaint. (See ECF No. 14 at 1.) Even so, she could have amended her
complaint “as a matter of course” within 21 days after receiving CHI’s motion. Fed. R.
Civ. P. 15(a)(1)(B). She chose not to do so. The Court therefore rejects her request to
convert CHI’s motion to dismiss into a motion for summary judgment. 4 Nonetheless, the
Court will sua sponte consider whether any of her additional documents may be
considered under the same principles that permit the Court to consider the Charge.
First, Reveles submits an affidavit in which she presents additional factual
allegations. (See ECF No. 16-1.) Her response brief relies heavily on this affidavit.
(See ECF No. 16 at 20–21, 25–26 (frequently citing to “Exhibit No. 1,” which is her
affidavit).) But plaintiffs “cannot rectify their pleading deficiencies by asserting new facts
in an opposition to a motion to dismiss.” Smith v. Pizza Hut, Inc., 694 F. Supp. 2d 1227,
1230 (D. Colo. 2010). Thus, the Court cannot consider Reveles’s affidavit as if a part of
her complaint. But the Court’s analysis below will address some of Reveles’s additional
allegations to show that, even if they had been presented in the complaint, the Court’s
conclusions would remain unchanged.
Next, Reveles submits her pre-Charge submissions to the EEOC, specifically,

4

This resolution necessarily moots her Rule 56(d) request.

5

her intake questionnaire and a four-page letter attached to it. (ECF Nos. 16-2, 16-3.)
The letter, in particular, contains significant details not embraced by the Charge itself. If
the EEOC had treated Reveles’s intake questionnaire and the attached letter as a
charge but had never issued a formal charge of discrimination on EEOC Form 5, the
Court could likely consult the questionnaire and its attachment in the same way it can
consult the Charge in this case. See, e.g., Fed. Express Corp. v. Holowecki, 552 U.S.
389, 401, 405 (2008). However, that is the exception to “the general rule . . . that [the
court] typically look[s] to the charge form if one exists. This is because the charge form,
not a previous filing, is given to the employer to notify it of the potential claims against it
and ordinarily determines the scope of the EEOC's investigation.” Jones v. Needham,
856 F.3d 1284, 1290 (10th Cir. 2017); see also Green v. JP Morgan Chase Bank Nat’l
Ass’n, 501 F. App’x 727, 731–32 (10th Cir. 2012) (refusing to look to the intake
questionnaire because a formal charge issued). The Court is bound by the Tenth
Circuit’s holding in this regard, and therefore may not consult the intake questionnaire or
the attached letter. 5

5

As a former Regional Attorney for the EEOC’s Denver district office, the undersigned is
painfully aware of how EEOC investigators draft formal charges—and of how frequently, for no
considered reason and often times out of laziness or incompetence, investigators fail to include
within the charge critical factual allegations and theories of liability asserted in the intake
questionnaire filled out by the charging party. Thus, from the undersigned’s perspective, the
formal charge and the documents leading up to it (such as the intake questionnaire and related
correspondence) should be considered as a package unless there is clear evidence that an
employee intentionally abandoned certain accusations contained within the intake
questionnaire. This is particularly so in cases, such as this one, in which an unrepresented
complainant with no legal training, goes to the EEOC and relies on one of its investigators to
fully and competently prepare the legal form upon which so much later depends in the ensuing
administrative proceeding and litigation. (CHI claims Reveles was represented by an attorney
during the administrative process, but cites nothing to support this claim. See ECF No. 14 at 8
n.4.) This Court cannot perceive the justice in a decisional rule which binds a charging party to
what a government functionary—and not the aggrieved individual him- or herself—happens to
think is important enough to put in this administrative form. Unfortunately for Reveles here,
binding Tenth Circuit case law, cited above, currently forecloses the approach this Court would

6

Moreover, in this case, Reveles specifically checked a box on the intake
questionnaire stating, “I want to talk to an EEOC employee before deciding whether to
file a charge. I understand that by checking this box, I have not filed a charge with the
EEOC. I also understand that I could lose my rights if I do not file a charge in
time.” (ECF No. 16-2 at 4 (boldface in original).) For this additional reason, the Court
finds that considering the intake questionnaire is inappropriate.
C.

General Rule 12(b)(6) Standard
Given that the Court will evaluate CHI’s motion under Rule 12(b)(6), it must

“assume the truth of the plaintiff’s well-pleaded factual allegations and view them in the
light most favorable to the plaintiff.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d
1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is
“whether the complaint contains ‘enough facts to state a claim to relief that is plausible
on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Granting a motion to dismiss “is a harsh remedy which must be cautiously studied, not
only to effectuate the spirit of the liberal rules of pleading but also to protect the interests
of justice.” Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009)
(internal quotation marks omitted). “Thus, ‘a well-pleaded complaint may proceed even
if it strikes a savvy judge that actual proof of those facts is improbable, and that a
recovery is very remote and unlikely.’” Id. (quoting Twombly, 550 U.S. at 556).
II. PLAINTIFF’S ALLEGATIONS
Reveles began working for CHI in 2003 as a procurement manager. (ECF No. 1

take. As a result, form is exalted over substance, and a cramped and inflexible decisional rule
by our Circuit has provided the Defendant with a procedural and substantive windfall in this
case.

7

¶ 13.) In 2008, she was transferred to the Data Management Department as a “Product
Specialist.” (Id. ¶ 15.)
Another employee in Reveles’s new department, Andrew Martin, soon began
sexually harassing Reveles. He pressured her for sexual favors; made explicit sexual
gestures toward her; made unwelcome comments regarding her clothing and looks; left
sexually explicit notes, text messages, and voicemails for her; revealed his sexual
fantasies about her; and gave her unwanted gifts. (Id. ¶¶ 17–24.)
Eventually Martin’s harassment also began to take on violent overtones. His
communications with her revealed that he knew her license plate number and the color
of her daughter’s school backpack, suggesting that he had been stalking her. (Id.
¶¶ 25, 31.) On at least two occasions, he threatened actual physical violence, including
a threat that if Reveles reported his harassing behavior, he would “shove [her] into a
place where nobody would ever find [her].” (Id. ¶¶ 28–29 (internal quotation marks
omitted).)
No later than mid-2009, “Mr. Martin’s comments placed Ms. Reveles in
apprehension of contact that was harmful, offensive, and unwelcome.” (Id. ¶ 34.) In
August 2009, Reveles reported Martin’s behavior to her supervisor, Kevin Kakuda, the
vice president of supply chain data analytics at CHI. (Id. ¶¶ 16, 36.) Kakuda took no
action. (Id. ¶ 37.)
Reveles saw Martin sexually harassing at least four other female employees
around this time or in the ensuing years. (Id. ¶ 40.) One of those employees was Kelly
Trapp. (Id.) Sometime in 2011, Trapp reported Martin’s harassment to Kakuda, Steve
Kehrberg (senior vice president of supply chain/clinical engineering), and William

8

Nelson (whose role at CHI is unclear). (Id. ¶ 43.) 6 Kakuda responded that he “needed
proof,” something more than Trapp’s word against Martin’s. (Id. ¶ 44 (internal quotation
marks omitted).) Kakuda nonetheless wondered aloud whether Martin had behaved as
alleged at his former employer given that he “had left [that] former employment out of
the blue.” (Id. ¶¶ 45–46.) Trapp again asked Kakuda to investigate, but he reiterated
his need for “proof,” attributing that requirement to instructions he had received from the
company’s human resources department. (Id. ¶ 47.) Trapp replied that Reveles could
produce documentation (presumably cards, text messages, voicemails, and the like).
(Id. ¶ 48.) Kakuda never requested any documentation from Reveles. (Id. ¶ 49.) He
also did nothing in response to Trapp’s report that Martin was harassing another female
employee, Molly Hible. (Id. ¶ 51.)
In early 2014, Reveles went to lunch with Hible, “who indicated that Mr. Martin
was sending unwelcome text messages and cards to her as well.” (Id. ¶ 52.) On March
18, 2014, Reveles again reported Martin’s harassment of her, as well as of Hible, to
Kakuda, Nelson, and Don Dudley (whom Reveles identifies as “National Director Supply
Chain”). (Id. ¶ 53.) Kakuda responded, “Someone should warn her [Ms. Hible] of Mr.
Martin’s history,” but also expressed concern for his own safety: “If I fire him [Mr.
Martin], how do I know he won’t come after me and my family?” (Id. ¶¶ 54–55 (internal
quotation marks omitted; bracketed insertion in original).) Nelson, however, responded
by telling Martin “to ‘stop’ his behaviors” and “notify[ing] CHI’s Human Resources

6

Reveles identifies Nelson only as “Director.” (Id. ¶ 53.) However, Reveles’s
allegations portray Nelson as having far more day-to-day activities with CHI than one would
expect from a member of the board of directors. The Court presumes that “Director” in this
instance refers to the director of some organizational subdivision within CHI. No issue currently
presented for resolution turns on a precise understanding of Nelson’s role.

9

department about the concerns.” (Id. ¶ 57.) The human resources department
assigned one of its employees, Dave Seyfert, to investigate the case. (Id. ¶ 58.) It is
not clear whether Reveles knew this. She told Nelson, not Seyfert, “where Mr. Martin’s
text messages, cards, and notes were located in her desk for HR to review as part of
[its] investigation and as the ‘proof’ that Mr. Kakuda continually stated was needed.” (Id.
¶ 59.) No one at CHI came to inspect these materials. (Id. ¶ 60.)
This entire time, Martin’s sexually harassing behavior toward Reveles had
continued unabated. (Id. ¶ 38.) And, around this time (early 2014), Kakuda promoted
Martin to a position that made him Reveles’s direct supervisor. (Id. ¶ 39.) This was
apparently a breaking point for Reveles. No later than May 31, 2014, Reveles
requested and received a transfer to a department where her job duties would not
require her to interact with Martin. (Id. ¶¶ 67–68.)7 Kakuda remained her supervisor,
however. (Id. ¶ 68.)
From this point forward, Reveles’s and Kakuda’s relationship deteriorated. On
some unspecified date, “Mr. Kakuda mocked Ms. Reveles in an open meeting.” (Id.
¶ 70.) “Mr. Kakuda went out of his way to avoid discussing work related matters with
Ms. Reveles, assigning her tasks to other employees, sending emails to employees but
excluding her from the list, [and] canceling meetings.” (Id. ¶ 73.) “Further, part of Ms.
Reveles’[s] job responsibilities are ‘go lives’ where a new hospital connects with CHI’s
7

Reveles’s complaint does not itself provide the transfer date. However, the complaint
alleges that “Mr. Martin’s sexually harassing behavior against Ms. Reveles continued and
escalated through 2009, 2010, 2011, 2012, 2013, and 2014, without response from CHI.” (Id.
¶ 38.) Moreover, the Charge states that the latest date on which discrimination took place was
May 31, 2014. (ECF No. 14-1 at 4.) Given that Reveles’s allegations regarding what happened
to her post-transfer focus entirely on feared or actual retaliation based on reporting Martin’s
conduct (see ECF No. 1 ¶¶ 69–90), it is plain that the transfer ended her contact with Martin no
later than May 31, 2014.

10

software.” (Id. ¶ 74.) In January 2016, Kakuda excluded Reveles from a “go live” in
Houston. (Id. ¶ 75.) Also, “Ms. Reveles has repeatedly requested additional job related
training but was told, ‘i[t] i[s] not a good time for training,’ even though other employees
who did not complain were allowed training.” (Id. ¶ 76.)
In January 2016, a senior CHI human resources employee named Mary Beth
Cohan contacted Reveles “to schedule an interview based on an anonymous complaint
against Mr. Martin received through CHI’s ethics hotline.” (Id. ¶ 77.) On February 1,
2016, Reveles spoke with Nelson and “expressed her fears about reporting Mr. Martin.”
(Id. ¶ 78.) In other words, Reveles seems to have feared what Martin might do if she
spoke to Cohan about him. “Mr. Nelson replied, ‘Val, I know this is a stressful time for
you, we will continue to work with HR through these matters and will follow their
guidance as we have done with instances you’ve brought to our attention in the past.’”
(Id.) Reveles met with Cohan the following day “and provided her with all of the
documentation again.” (Id. ¶ 79.) It is not clear what Reveles means by “again” in this
allegation, unless she means to link it back to her previous instruction telling Nelson
where the documentation could be found. (See id. ¶ 59.) In any event, apparently on
account of Reveles’s evidence and evidence gathered from other victims of Martin’s
harassment, CHI fired Martin in February 2016. (Id. ¶¶ 80–85.)
Around the same time, Cohan told Reveles that CHI would investigate Kakuda
and Nelson based on their failure “to start an investigat[ion] or protect the female
employees from repeated harassment.” (Id. ¶ 86.) But, on May 2, 2016, “Ms. Cohan
stated [to Reveles] that the investigation was not moving forward and all management
would remain in their positions.” (Id. ¶ 88.) Kakuda and Nelson remain employed with

11

CHI in management positions. (Id. ¶ 90.)
Reveles filed her Charge with the EEOC on July 6, 2016. (ECF No. 14-1 at 4.)
In the “Discrimination Based On” section of the Charge form, the boxes for “Sex” and
“Retaliation” are checked. (Id.) In the “Date(s) Discrimination Took Place” section,
June 1, 2009 is listed as the “Earliest” date and May 31, 2014 is listed as the “Latest”
date, and the box for “Continuing Action” is not checked. (Id.) Finally, the narrative
portion of the Charge reads as follows:
I was hired by Catholic Health Initiatives as a Procurement
Manager on or about April 12, 2003. Beginning in or around
2009, and continuing until on or around May 2014, I was
subjected to sexual harassment including but not limited to
unwanted pressure for sexual favors, smacking and licking
of lips, sexual[ly] explicit gestures, unwanted notes, cards,
calls, voice mails, comments on my clothing, and sexual
jokes by a co-worker. I reported the discrimination to my
direct[] supervisor, the company Vice President and Human
Resources in 2009, 2014 and 2015,[8] but nothing was done.
I believe I have been discriminated against because of my
sex (female) and retaliated against for opposing
discrimination in the workplace in violation of Title VII of the
Civil Rights Act of 1964, as amended.
(Id.) The EEOC issued a Notice of Right to Sue letter on July 15, 2016. (ECF No. 1
¶ 92.) Reveles filed her complaint on October 13, 2016, precisely 90 days later. See
42 U.S.C. § 2000e-5(f)(1) (Title VII action must be brought within 90 days of the
claimant’s notification of right to sue).

8

As this narrative and the rest of the Charge makes clear, Reveles considered the
sexual harassment to have ended by May 2014. Her report in 2015 apparently refers to a report
on behalf of another female employee whom Martin had then been harassing. (See ECF No. 1
¶¶ 61–66.)

12

III. ANALYSIS
A.

Scope of the Charge
A formal EEOC charge of discrimination “must contain the general facts

concerning the discriminatory actions later alleged in the legal claim,” and “a plaintiff’s
claim in federal court is generally limited by the scope of the administrative investigation
that can reasonably be expected to follow the charge of discrimination submitted to the
EEOC.” Jones, 856 F.3d at 1290 (internal quotation marks and citation omitted). CHI
argues that none of Reveles’s Title VII theories are fairly encompassed by the Charge.
(ECF No. 14 at 9–10.)
The Charge attempts to assert two Title VII violations: sexual harassment itself,
and retaliation for opposing such sex discrimination. Although brief, the factual basis for
the sexual harassment claim is plainly set forth, including dates, the sorts of sexually
hostile conduct to which Reveles was subjected, and the assertion that she reported the
harassment on numerous occasions but her supervisors did nothing. CHI offers no
argument why this amount of detail was not enough to establish the scope of the
administrative investigation that could reasonably have been expected to follow, nor
does CHI point to any allegation connected to her sexual harassment claim that, in
CHI’s view, is not fairly encompassed within the Charge. The Court therefore rejects
CHI’s claim in this regard.
The story is different for Reveles’s retaliation theory. Title VII specifically
prohibits employers from retaliating against employees who complain of unlawful
discrimination. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment
practice for an employer to discriminate against any of [its] employees . . . because [the
employee] has opposed any practice made an unlawful employment practice by this
13

subchapter . . . .”). Actionable retaliation refers to any action that, when viewed
objectively, “well might 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,
68–69 (2006) (internal quotation marks omitted).
In her complaint, Reveles alleges a series of acts that Kakuda took, allegedly in
retaliation for her complaints against Martin: mocking her in an open meeting, going out
of his way to avoid discussing work-related matters, assigning her tasks to other
employees, excluding her from group e-mails, canceling meetings with her, not
permitting her to be part of a “go live” project at a Houston hospital, and refusing her
requests for additional job training while granting those requests to others. (ECF No. 1
¶¶ 70–76.) CHI asserts that none of these allegations was fairly included within the
Charge. (ECF No. 14 at 10 & n.6.) The Court agrees.
EEOC charges should be construed liberally. Jones, 856 F.3d at 1290. But
liberal construction in this context means construing the charge to embrace the legal
theories that can reasonably be discerned from the facts alleged. See, e.g., Jones, 856
F.3d at 1290–91 (facts asserted in the charge could be reasonably construed to
embrace quid pro quo sexual harassment, even though the charge focused on
allegations tending to show hostile environment sexual harassment); Jones v. UPS,
Inc., 502 F.3d 1176, 1186–87 (10th Cir. 2007) (plaintiff’s factual allegations reasonably
embraced disability discrimination, even though plaintiff failed to check the box
indicating a claim for disability discrimination). The Court has yet to locate a case in this
context applying the liberal-construction canon to infer facts in support of a legal theory.
Cf. MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005) (refusing

14

to construe the charge to encompass disability discrimination based on depression
when the charge only mentioned disability based on coronary disease).
Here, Reveles’s Charge invokes “retaliation” without providing any factual
support. It therefore fails to inform the reader of “the scope of the administrative
investigation that can reasonably be expected to follow.” Jones, 856 F.3d at 1290
(internal quotation marks omitted).
In her complaint, Reveles includes CHI’s alleged “fail[ure] to investigate or
otherwise address her complaints of sex discrimination against Mr. Martin” and its
alleged choice to “ignor[e] [her] and her fellow employees’ concerns about their physical
safety” within her retaliation claim. (ECF No. 1 ¶ 110.) From this, the Court might infer
that Reveles meant to say in her Charge that the continuing harassment through 2014
was itself retaliatory, i.e., that CHI supervisors allowed the harassment to continue
specifically as punishment for having reported it. But this inference is only available
because the Court has now seen the complaint—nothing in the Charge itself would
independently lead any reader to make this inference. And again, Tenth Circuit
authority prevents this Court from looking beyond the charge to understand what it
encompasses. 9
The Court is thus constrained to conclude that Reveles failed to exhaust her
administrative remedies regarding her retaliation claim, and it must be dismissed
9

These allegations in the complaint are highly problematic in any event. If true, these
could support a hostile sexual environment claim against CHI, discussed in Part III.B, but
Reveles offers no allegations suggesting that CHI failed to investigate or ignored her concerns
specifically because she complained about sexual harassment. Cf. Gunnell v. Utah Valley State
Coll., 152 F.3d 1253, 1263 (10th Cir. 1998) (to be liable for retaliation under Title VII, employer
must act with “intentionally retaliatory” motive). To the contrary, she undermines this theory by
asserting that her relationship with Kakuda (the alleged retaliator) was “outstanding” before the
department transfer that put her out of contact with Martin. (ECF No. 1 ¶ 69.)

15

without prejudice. See Gallagher v. Shelton, 587 F.3d 1063, 1068 (10th Cir. 2009)
(“Ordinarily, a dismissal based on a failure to exhaust administrative remedies should
be without prejudice.” (emphasis in original)).
B.

Timeliness of Sex Discrimination Charges
Although Reveles’s retaliation claim theory is not fairly within her Charge, her

sexual harassment charge is. As to that, however, CHI argues that it was not timely
presented to the EEOC, and so Reveles cannot be said to have exhausted this theory
either. The Court agrees.
1.

300-Day Requirement

“In a State that has an entity with the authority to grant or seek relief with respect
to the alleged unlawful [employment] practice, an employee who initially files a
grievance with that agency must file the charge with the EEOC within 300 days of the
employment practice . . . .” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109
(2002) (explaining timing requirements established by 42 U.S.C. § 2000e-5(e)(1))
(“Morgan”). Colorado has established an “entity with the authority to grant or seek
relief” (namely, the Colorado Civil Rights Division), so employees in Colorado are
subject to this 300-day time limit. See, e.g., Castaldo v. Denver Pub. Sch., 276 F. App’x
839, 841 (10th Cir. 2008).
Given this, the cut-off date for Reveles is September 10, 2015—the 300th day
before July 6, 2016, when she filed her charge.
2.

Discrete Acts Versus Hostile Work Environment

If a would-be plaintiff believes that an employer has chosen not to hire her, or
chosen to fire her, or otherwise discriminated against her “with respect to [her]
compensation, terms, conditions, or privileges of employment” on account of a
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protected characteristic (such as sex), see 42 U.S.C. § 2000e-2(a), she must file a
separate discrimination charge with the EEOC within 300 days of each such act,
Morgan, 536 U.S. at 110–15. Any discrete discriminatory act more than 300 days old at
the time the charge is filed is “untimely filed and no longer actionable” absent
application of “equitable doctrines such as tolling or estoppel,” which “are to be applied
sparingly.” Id. at 113 –15.
By contrast, “hostile work environment” claims, the sort of claim into which most
Title VII sexual harassment claims fall,
are different in kind from discrete acts. Their very nature
involves repeated conduct. The “unlawful employment
practice” therefore cannot be said to occur on any particular
day. It occurs over a series of days or perhaps years and, in
direct contrast to discrete acts, a single act of harassment
may not be actionable on its own. Such claims are based on
the cumulative effect of individual acts.
Id. at 115 (citations omitted); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57,
66–67 (1986) (sexual harassment amounts to sex discrimination under Title VII if
sufficiently severe or pervasive such that it creates a sexually hostile environment).
Consequently, if “an act contributing to” the hostile environment claim occurred in the
300 days before the plaintiff filed the discrimination charge with the EEOC, the charge is
timely as to that claim and “the entire time period of the hostile environment may be
considered by a court for the purposes of determining liability.” Morgan, 536 U.S. at
117.
3.

Reveles’s Hostile Environment Claim

Reveles’s allegations, accepted as true and viewed in the light most favorable to
her, show that Martin’s conduct created a hostile working environment for her from
approximately 2008 through May 31, 2014, when she was transferred to a different
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department. By any measure, then, it would seem that Reveles’s hostile work
environment claim is untimely.
Reveles has two responses. First, she says, “the actions of [her] supervisors and
CHI management created a hostile work environment for her through the present date.”
(ECF No. 16 at 17.) But her Charge and her complaint entirely fail to support this,
unless she is referring to Kakuda’s alleged retaliation—a matter distinct from and later
than her hostile sexual environment claim, as already discussed above.
Second, Reveles says that she “was not notified of [CHI’s] failure to adequately
respond to her complaints, the necessary fifth element of her hostile work environment
claim, until May 2, 2016.” (Id.) By “necessary fifth element,” Reveles refers to the
Supreme Court’s holding that an employer is not liable for a hostile working environment
unless “it knew or should have known about the [employee] conduct [leading to the
hostile environment] and failed to stop it.” Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 759 (1998). In other words, according to Reveles, she had no hostile work
environment claim until she learned from Cohan on May 2, 2016 that the investigation
into Kakuda’s and Nelson’s failure to discipline Martin had been closed. (See ECF No.
1 ¶ 88.) The Court disagrees.
Taking Reveles’s allegations as true, she had a viable hostile working
environment claim at least by late 2009. By then, (1) she had endured Martin’s revolting
behavior; (2) she had reported Martin’s conduct to her supervisor, Kakuda; and
(3) Kakuda had “failed to escalate the issue, follow up on [her] complaint, request an HR
investigation, or provide [her] with any concrete solutions on how to handle the
situation.” (ECF No. 1 ¶¶ 18–37.) There is no requirement that a prospective plaintiff

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receive a formal notification from the human resources department that an investigation
will not go forward—much less an investigation into employees’ failure to investigate,
rather than an investigation into the sexually harassing conduct itself. Such a
requirement would be detrimental to employees, making it that much harder to sue
under Title VII for sexual harassment. For reasons known only to Reveles, she waited
nearly seven years after her sexually hostile environment claim accrued to finally file a
charge of discrimination alleging same with the EEOC. Unfortunately for her, this
extraordinarily lengthy delay is fatal to her sex discrimination claim in this case.
4.

Equitable Tolling

Reveles argues that, if the Court finds her sex discrimination accusations
untimely, she deserves equitable tolling. As already noted above, equitable tolling is
potentially available, but it should be applied “sparingly.” Morgan, 536 U.S. at 113.
Reveles argues that equitable tolling is appropriate here because CHI actively
deceived her into believing that it would stop Martin’s behavior, and she would have
filed a charge earlier but for this deception. (See ECF No. 16 at 20–21.) Cf. Cottrell v.
Newspaper Agency Corp., 590 F.2d 836, 838–39 (10th Cir. 1979) (equitable tolling of
Title VII claim may be appropriate on allegations that “rise to the level of active
deception”). Notably, Reveles does not allege any active deception, or even inadvertent
deception, in her complaint. The intake questionnaire and the attached letter—
assuming the Court could consider them—likewise contain nothing suggesting
deception. All of these documents tell a story of frustration at being ignored when
reporting Martin’s harassment. There is no claim that anyone at CHI promised anything
to Reveles in response to her complaints about Martin at any time before the
harassment ended on May 31, 2014, or in the 300 days thereafter. The closest
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approach to anything of this nature is Reveles’s allegation that CHI responded to her
March 2014 complaint about Martin by assigning human resources employee Dave
Seyfert to investigate the case. (ECF No. 1 ¶ 58.) But Reveles does not allege that she
was aware of this event at the time, nor that Seyfert or anyone else affirmatively
promised her anything with respect to the investigation—much less made such a
promise with the intent to deceive.
The only place in the record in which Reveles complains of anything arguably
approaching deception is in her affidavit in support of her response brief. (See ECF No.
16-1.) The Court has already ruled that it may not consider this affidavit in resolving
CHI’s motion. Even if the case were otherwise—e.g., if Reveles had amended her
complaint to add the affidavit’s allegations—the Court would conclude that Reveles’s
assertions in this respect are conclusory and therefore not entitled to the presumption of
truth, or otherwise do not raise a plausible claim for equitable tolling.
The affidavit begins with a recounting of events from the time Martin began
sexually harassing her, up through the point when matters came to a head in 2014, and
also briefly describes Martin’s harassment of a different employee in 2015. (Id. ¶¶ 1–
21.) This is largely consistent with the complaint, and includes specific names and
dates. Then the affidavit inserts the following two sentences, which suddenly and rather
conspicuously lack the names and dates that Reveles was so careful to give in prior
portions of her affidavit:
CHI repeatedly promised me that it would investigate my
complaint, review my documentation, and punish this
employee.
I reasonably believed that CHI would handle the matter
internally.

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(Id. ¶¶ 22–23.) Finally, the affidavit returns to allegations of retaliation (also largely
consistent with the complaint), including names and specific dates. (Id. ¶¶ 24–30, 33–
40.) Given this sequence, and the fact that nothing like this appeared in any of
Reveles’s submissions to the EEOC or in her complaint, the Court is forced to conclude
that these allegations of CHI’s promises were inserted purely as a tactic to stave off
dismissal. Cf. O’Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir. 1976) (“when a
complaint omits facts that, if they existed, would clearly dominate the case, it seems fair
to assume that those facts do not exist”).
Reveles’s affidavit also attempts to convert Kakuda’s fear for his own safety into
some sort of active deception. As recounted in her complaint, when she complained to
Kakuda about Martin in March 2014, Kakuda responded, “If I fire him [Mr. Martin], how
do I know he won’t come after me and my family?” (ECF No. 1 ¶ 55 (internal quotation
marks omitted; bracketed insertion in original).) Reveles repeats the same allegation in
her affidavit (ECF No. 16-1 ¶ 14), but then adds, “Mr. Kakuda’s statement added to the
fear I felt about Mr. Martin and actively discouraged me from pursuing a complaint
against my coworker” (id. ¶ 15). There are several problems with this assertion. First,
Reveles does not allege that Kakuda himself actively discouraged her from doing
anything, but only that his statement somehow had that effect on her. Second, Reveles
does not allege that Kakuda actively intended to discourage Reveles. Third, “actively
discourag[ing] me from pursuing a complaint against my coworker” is different from
actively discouraging someone from pursuing an EEOC charge against his or her
employer. Co-workers cannot be liable under Title VII. See Williams v. W.D. Sports,
N.M., Inc., 497 F.3d 1079, 1095 n.1 (10th Cir. 2007).

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Reveles’s affidavit also alleges that Cohan, the human resources employee who
finally investigated Martin in 2016, “did not provide me with any information about”
reporting harassment to the EEOC or the Colorado Civil Rights Division. (ECF No. 16-1
¶¶ 31–32.) But again, Reveles does not allege that Cohan intentionally withheld such
information so as to discourage Reveles from pursuing a charge. In any event,
Reveles’s interactions with Cohan took place mostly in early 2016, and Reveles filed her
Charge on July 6, 2016. Thus, even assuming Cohan remained silent out of a nefarious
motive, Cohan at best delayed Reveles’s Charge by three or four months, and Reveles
does not explain how those three or four months would have made any difference in her
claims as she presently alleges them.
Given all this, Reveles’s Title VII claim for hostile environment sexual harassment
must be dismissed. In a strict technical sense, this is a dismissal for failure to exhaust
administrative remedies because Reveles failed to file a timely charge. Dismissals
based on failure to exhaust are usually without prejudice. Gallagher, 587 F.3d at 1068.
However, the timeliness analysis above is functionally indistinguishable from a
traditional statute of limitations analysis, and it bars any future claim by Reveles seeking
redress for the sexually hostile environment that CHI allegedly permitted through May
2014. Thus, Reveles’s hostile sexual environment claim will be dismissed with
prejudice. Cf. Walker v. United Parcel Serv., Inc., 240 F.3d 1268, 1271 (10th Cir. 2001)
(“Despite that ‘without prejudice’ label [affixed by the district court to a dismissal for
failure to timely exhaust], in real world terms the dismissal was with prejudice because
any attempt by Walker to refile her claims [with the EEOC] after the district court’s order
was issued would be out of time.” (citation omitted; emphasis in original)).

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C.

Jurisdiction Over Remaining Claims
Reveles states that she filed a second EEOC charge, which the EEOC is still

investigating, and that she has filed or will file a third charge in the very near future.
(ECF No. 38 ¶¶ 4–5.) She does not claim that she has received a Right to Sue letter as
to any of those charges. Consequently, there appears to be no present basis for
amendment of her Title VII claims. The Court is thus left with only supplemental
jurisdiction over Reveles’s state-law claims. See 28 U.S.C. § 1367.
This Court “may decline to exercise supplemental jurisdiction over a claim . . . if
* * * [it has] has dismissed all claims over which it has original jurisdiction.” Id.
§ 1367(c)(3). Such dismissal is generally appropriate when pretrial proceedings remain
in an early stage. See, e.g., Olcott v. Del. Flood Co., 76 F.3d 1538, 1550 (10th Cir.
1996). The Court finds it particularly appropriate here given that all pretrial proceedings
were stayed pending the outcome of CHI’s motion. Thus, the Court will dismiss
Reveles’s state-law claims so that they may be re-filed in state court.
The Court notes that § 1367(d) tolls the statutes of limitation on dismissed
supplemental state-law claims for 30 days after this Court’s dismissal. This provision
cannot revive a state-law claim for which the statute of limitations already expired before
filing this lawsuit—a matter the parties contest, and about which the Court expresses no
opinion. The Court points out § 1367(d) solely to note that, to the extent Reveles
believes any of her state-law claims were timely when filed in this Court, they could still
become untimely if she does not move quickly to re-file them in state court.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

The stay of proceedings (see ECF No. 37) is LIFTED;
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2.

CHI’s Motion to Dismiss (ECF No. 14) is GRANTED as follows:
a.

Reveles’s First and Second Claims for Relief (Title VII sex discrimination
and sexual harassment) are DISMISSED WITH PREJUDICE;

b.

Reveles’s Third Claim for Relief (Title VII retaliation) is DISMISSED
WITHOUT PREJUDICE for failure to exhaust remedies; and

c.

Reveles’s Fourth through Ninth Claims for Relief are DISMISSED
WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3); and

3.

The Clerk shall enter judgment consistent with this dismissal and shall terminate
this case. The parties shall bear their own costs.
Dated this 21st day of June, 2017.
BY THE COURT:

______________________
William J. Martinez
United States District Judge

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