Rosales v. Walmart, Inc.

Filing 35

MEMORANDUM OPINION AND ORDER granting 11 Defendant's Motion to Dismiss with Prejudice. Plaintiff's sole ADA claim under Count I is dismissed with prejudice. Denying as moot 22 Defendant's Motion for Summary Judgment. The Trial Preparation Conference set for May 12, 2023 and the five-day Jury Trial set to begin on May 30, 2023 are hereby vacated, by Judge Nina Y. Wang on 11/17/2022. (ebuch)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 21-cv-02078-NYW-SKC
MARTHA ROSALES,
Plaintiff,
v.
WALMART, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendant Walmart, Inc.’s (“Walmart” or “Defendant”)
Motion to Dismiss with Prejudice (“Motion to Dismiss”), [Doc. 11, filed September 14, 2021],
and Motion for Summary Judgment (collectively, the “Motions”), [Doc. 22, filed April 29, 2022]. 1
This Court concludes that oral argument would not materially assist in the resolution of this matter.
Accordingly, upon careful review of the Motions and associated briefing, the docket, and
applicable case law, the Court respectfully GRANTS Defendant’s Motion to Dismiss, and
DENIES as moot the Motion for Summary Judgment.
BACKGROUND
The following facts are drawn from the operative Verified Complaint and Jury Demand
(“Complaint”), [Doc. 1], and taken as true for the purposes of resolving the instant Motions. This
action arises from the employment of Plaintiff Martha Rosales (“Ms. Rosales” or “Plaintiff”) with
Walmart, at “Store #1689.” [Doc. 1 at ¶ 7]. Ms. Rosales alleges that she began her employment
1

On August 4, 2022, this matter was reassigned to Judge Nina Y. Wang upon her appointment as
a United States District Judge. [Doc. 34].

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with Walmart “as a Cashier on September 27, 2006, and throughout the years, held several
positions with the company until ultimately being promoted on or about October 31, 2016, to
Assistant Store Manager.” [Id.]. Following a work injury in April 2019 and subsequent surgery,
Ms. Rosales alleges that she required, and Walmart provided her, accommodations to perform her
job. See [id. at ¶¶ 8, 14–17, 19–20]. In August 2020, Ms. Rosales submitted a “Return to Work
Certification” to Walmart, which included her “current work restrictions and accommodation
request documentation indicating that [she] . . . had reached Medical Maximum Improvement in
her on the job injury claims” from the April 2019 injury. [Id. at ¶ 19]. Thereafter, Walmart placed
Ms. Rosales on a 12-week leave “pending an alternative accommodations reassignment.” [Id. at
¶ 21]. Ms. Rosales alleges that, eventually, a “Health Screener position opened up” at another
Walmart store and she “was forcibly required to accept [the position] in light of the discriminatory
impact of the Defendant’s application of its policies.” [Id. at ¶ 26].
On May 24, 2021, Ms. Rosales filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) (“EEOC Charge” or the “Charge”), alleging
disability discrimination. [Id. at ¶ 27]; see also [Doc. 11-1]. In the Charge, Ms. Rosales claimed
that the discrimination began in September 2020 and indicated that it was a “continuing action.”
[Doc. 11-1 at 1]. Four days later, on May 28, 2021, the EEOC issued a Notice of Right to Sue,
thus terminating the agency’s processing of the Charge. [Doc. 1 at ¶ 28]; see also 29 C.F.R. §
1601.28.
On August 2, 2021, Ms. Rosales filed her Complaint in this Court, wherein she asserts a
single cause of action against Walmart for disability discrimination in violation of the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”). [Doc. 1 at 6–7]. On September 14,
2021, Walmart filed the instant Motion to Dismiss, seeking dismissal of Plaintiff’s sole ADA claim

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on the basis that Plaintiff failed to exhaust administrative remedies before filing suit. [Doc. 11].
Ms. Rosales responded to the Motion to Dismiss on September 20, 2021, [Doc. 12], and Walmart
replied on October 4, 2021, [Doc. 17]. Following the close of discovery, on April 29, 2022,
Walmart filed the Motion for Summary Judgment. [Doc. 22]. Ms. Rosales responded to the
Motion for Summary Judgment on May 17, 2022, [Doc. 25], and Walmart replied on May 26,
2022, [Doc. 26]. The Motions are thus ripe for disposition.
As discussed further below, the Court finds that Ms. Rosales failed to exhaust her
administrative remedies with respect to her sole ADA claim. Accordingly, the Court finds that
resolution of the Motion to Dismiss also disposes of the Motion for Summary Judgment. Thus,
the analysis below will focus on the Motion to Dismiss.
LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding
a motion under Rule 12(b)(6), the Court must “accept as true all well-pleaded factual allegations
. . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009)). A plaintiff may not rely on mere labels or conclusions, and a “formulaic recitation of
the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Rather, “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); see also
Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008) (explaining that plausibility refers “to the
scope of the allegations in a complaint,” and that the allegations must be sufficient to nudge a
plaintiff’s claim(s) “‘across the line from conceivable to plausible.’” (citation omitted)). The Court

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must ultimately “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest
Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
While consideration of a Rule 12(b)(6) motion is generally limited to the four corners of
the complaint, the Court may consider materials outside the complaint without converting a motion
to dismiss to one for summary judgment if the documents are central to the plaintiff’s claims,
referred to in the complaint, and the parties do not dispute their authenticity. See Cnty. of Santa
Fe, N.M. v. Public Serv. Co. of N.M., 311 F.3d 1031, 1035 (10th Cir. 2002).
ANALYSIS
In the Motion to Dismiss, Walmart argues that Ms. Rosales failed to exhaust administrative
remedies with respect to her ADA claim before she initiated this action in this Court. See [Doc.
11]. Walmart contends that Ms. Rosales’s judicial Complaint “challenges multiple alleged
employment decisions not mentioned in” the EEOC Charge, [Doc. 11 at 1], but the EEOC Charge
“fails to identify any of the allegedly adverse employment actions for which Plaintiff now claims
disability discrimination,” [id. at 6]. Thus, insofar as Ms. Rosales’s ADA claim in this action is
based on “an alleged demotion, failure to accommodate, or hostile work environment based upon
her alleged disability,” Walmart contends that the EEOC Charge failed to put the EEOC or
Walmart on notice regarding such claims. [Id. at 9].
In her Response, Ms. Rosales does “no[t] dispute that [she] was required to exhaust her
administrative remedies by filing [the Charge] with the EEOC in support of her ADA claim.”
[Doc. 12 at 7]. Rather, Ms. Rosales asserts that Walmart misunderstands her theory of relief.
Specifically, Ms. Rosales insists that she is making a sole “claim for discrimination based upon
disparate impact and no other claim is asserted.” [Id. at 10 (emphasis added)]; see also [id. at 4

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n.3 (“Plaintiff makes no claim for relief of disparate treatment or hostile work environment as her
only claim for relief is for disparate impact.”)]. According to Ms. Rosales, her disparate impact
claim “is based upon the rigid administration of Walmart’s policies for the class of employees of
which Plaintiff is a member,” and she maintains that “she places her description of her disparate
impact claim in a historical context in her complaint.” [Id. at 10]. Based on these assertions, Ms.
Rosales states that her EEOC Charge “contains the facts concerning the discriminatory actions
underlying her one claim for relief of disparate impact.” [Id.]. Ms. Rosales also insists that her
EEOC Charge “identifies a continuing course of discrimination over Walmart’s exercise of its
policies for her and other members of her class.” [Id. at 11]. Finally, Ms. Rosales argues that in
analyzing the instant Motion, this Court may only consider her Complaint, and not the EEOC
Charge. See [id. at 6].
On Reply, Walmart rejects Ms. Rosales’s position, countering that the EEOC Charge fails
to set forth any “facts to support a disparate impact claim – such as facts to suggest that Plaintiff
was demoted or placed on leave due to a neutral Walmart policy, or that such a policy had a
disparate impact on individuals within Plaintiff’s protected class.” [Doc. 17 at 2]; see also [id. at
5–6].
I.

Preliminary Issues
Before turning to the substance of whether Plaintiff has properly exhausted her

administrative remedies, this Court first considers briefly whether it may analyze the issue in the
context of a motion to dismiss, and what evidence the Court may consider in doing so. Though
not entirely clear, Plaintiff suggests that the Court may not determine whether a plaintiff has
properly exhausted her administrative remedies at the motion to dismiss stage, but only after
discovery and at a summary judgment stage. See [Doc. 12 at 7]. But the precedent of the United

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States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) is clear that “[a]n affirmative
defense of failure to exhaust can be raised in a motion to dismiss under Rule 12(b)(6) when the
grounds for the defense appear on the face of the complaint.” Kina v. Dep’t of Children and
Families Vocational Rehab. Services, 21-4025-JWB, 2021 WL 2822536, at *2 (D. Kan. July 7,
2021) (citing Cirocco v. McMahon, 768 F. App’x 854, 857–58 (10th Cir. 2019)).
Plaintiff also contends that “extrinsic evidence can only be consulted to rule on the [sic]
subject matter jurisdiction only.” 2 [Doc. 12 at 7]. As mentioned above, under Tenth Circuit
precedent, a “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.”
Jacobsen v. Deseret Book Co., 287 F.3d 936, 941–42 (10th Cir. 2002) (citing GFF Corp. v.
Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384 (10th Cir. 1997)). Here, the Complaint
refers to, and quotes directly from, Ms. Rosales’s EEOC Charge. See [Doc. 1 at ¶ 27]. Walmart,
in turn, submitted a copy of the Charge with the Motion to Dismiss. [Doc. 11-1]. Ms. Rosales
does not dispute the Charge’s authenticity; in fact, she relies upon the Charge throughout her
Response. See, e.g., [Doc. 12 at 9]. Accordingly, the Court finds that Walmart has properly raised
its affirmative defense in the instant Motion to Dismiss and the Court may consider the EEOC
Charge.

2

In her Response, Plaintiff asserts that “[f]or reasons not clearly understood by Plaintiff,
Defendant attempts to make their exhaustion remedy jurisdictional rather than as an affirmative
defense.” [Doc. 12 at 13]. This characterization appears inaccurate. Defendant’s Motion to
Dismiss is asserted pursuant to Rule 12(b)(6) for failure to state a claim, and does not raise a
jurisdictional argument. See [Doc. 11]; Fed. R. Civ. P. 12(b)(6). Indeed, there is no mention of
subject matter jurisdiction at all. See [Doc. 11 at 5 (Defendant’s observation that “[t]his regulatory
exhaustion requirement is not a jurisdictional prerequisite to suit but is a claims-processing rule
that the employer may rise as an affirmative defense”)].
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II.

Application
The Parties agree that under the ADA, a plaintiff must exhaust her administrative remedies

before filing suit. See [Doc. 11 at 5–10; Doc. 12 at 7–11]; see also Jones v. U.P.S., Inc., 502 F.3d
1176, 1183 (10th Cir. 2007). “The first step to exhaustion is the filing of a charge of discrimination
with the EEOC.” 3 Jones, 502 F.3d at 1176. The EEOC charge “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’” document. Jones v. Needham, 856 F.3d 1284, 1290
(10th Cir. 2017) (quoting Jones, 502 F.3d at 1185). The purpose of the administrative exhaustion
requirement is two-fold: it is “intended to protect employers by giving them notice of the
discrimination claims being brought against them, in addition to providing the EEOC with an
opportunity to conciliate the claims.” Foster v. Ruhrpumpen, Inc., 365 F.3d 1191, 1194–95 (10th
Cir. 2004). Thus, a plaintiff generally may not bring an ADA 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. Dep’t of Mental Health and Substance Servs., 165 F.3d 1321, 1326 (10th
Cir. 1999).
As previously noted, Ms. Rosales asserts a single ADA claim against Walmart based on a
disparate impact theory of discrimination. See [Doc. 12 at 10]. Disparate impact claims “involve
employment practices that are facially neutral in their treatment of different groups but that in fact
fall more harshly on one group than another and cannot be justified by business necessity.”
Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006) (citation omitted). While the Court

3

The charge must be filed “within 300 days of the challenged action.” Davidson v. Am. Online,
Inc., 337 F.3d 1179, 1183 (10th Cir. 2003) (footnote omitted).
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“liberally construe[s]” the allegations in Ms. Rosales’s EEOC Charge, “the [C]harge must contain
facts concerning the discriminatory . . . actions underlying” her disparate impact claim. Jones, 502
F.3d at 1186. Thus, “[t]he ultimate question” before the Court “is whether the conduct alleged in
the lawsuit would fall within the scope of an EEOC investigation which would reasonably grow
out of the [statements] actually made in the EEOC charge.” Smith v. Cheyenne Ret. Inv’rs L.P.,
904 F.3d 1159, 1164 (10th Cir. 2018) (citations, quotations, and alteration marks omitted).
Review of Ms. Rosales’s Charge shows no facts that would give notice of an alleged
violation of the ADA based on a disparate impact theory of disability discrimination. Ms.
Rosales’s Charge states in its entirety as follows:
I was hired on September 23, 2006, as a Cashier, and on October 31, 2018, I was
promoted to Assistant Manager. In April 2019, I suffered an on-the job injury, and
on October 4, 2019, I had surgery to repair the damage caused by the injury. After
the surgery, I returned to work with permanent restrictions. The restrictions
included: no lifting, no pushing nor puling more than 10lbs, no running equipment,
no bending, no squatting, no kneeling, no climbing ladders, and working not more
than five (5) hours per week. In January 2020, I was provided with a reasonable
accommodation of working assisting Human Resources.
In September 2020, I was notified by Sedgwick (a third party vendor that
administers Short Term Disability [STD]) to take twelve (12) weeks of leave.
During the twelve (12) weeks of STD, the company looked for other positions that
could accommodate my restrictions. I was reinstated to work in the position of
Screener / Cashier, a position that meets my medical restrictions.
I believe I have been discriminated against in the terms and conditions of
employment because of my real or perceived disability, in violation of the
Americans with Disabilities Act (ADA) of 1990, as amended.
[Doc. 11-1 at 1–2]. The Court finds that none of these statements relate to Ms. Rosales’s alleged
disparate impact claim. In her Response, Ms. Rosales summarizes her disparate impact theory as
follows:
Walmart’s policies which automatically execute an adverse employment condition
upon a protected disabled employee because of Walmart’s policy in administering
job-injured employees’ conditions after administration of the Worker’s
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Compensation Statutes has executed a discriminatory disparate impact upon the
Plaintiff and all members of her class, and is, therefore, in violation of the ADA.
[Doc. 12 at 13].

Significantly, however, the EEOC Charge fails to even mention any of

Defendant’s “policies” at all, let alone any company policies (a) related to Walmart’s management
of employees’ work-related injuries, see [Doc. 11-1], or (b) that are “facially neutral in their
treatment of different groups but that in fact fall more harshly on one group than another.”
Carpenter, 456 F.3d at 1187; see also id. at 1193 (“The first step in raising a disparate-impact
claim is to identify the specific employment practice allegedly causing the discriminatory
impact.”); Arndt v. City of Colorado Springs, 263 F. Supp. 3d 1071, 1075 (D. Colo. 2017) (“A
plaintiff claiming disparate impact discrimination must establish that an identifiable employment
practice or policy causes a significant disparate impact on a protected group.”).
In Beth v. Espy, 854 F. Supp. 735, 736 (D. Kan. 1994), the District of Kansas held that the
language in the plaintiff’s EEOC charge did not put the defendant on notice of a disparate impact
claim. 854 F. Supp. at 738. In that case, the “gist” of the plaintiff’s disparate impact claim in her
judicial complaint was that:
[the] defendant has required supervisory experience as an element of the job which
plaintiff sought, that supervisory experience in fact is not a necessary requirement
for that position, and that because defendant has historically refused to allow
women into supervisory positions the defendant’s practice of requiring supervisory
experience, while facially neutral, has had a disparate impact preventing females
from reaching management positions.
Id. at 736. The court held that because the EEOC charge “fail[ed] to even mention the supervisory
experience requirement which form[ed] the basis of [the plaintiff’s] disparate impact claim,” the
“general language” in the charge was insufficient “to satisfy the requirement that [her] disparate
impact claim could reasonably be expected to grow out of the charge of discrimination.” Id. at

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738 (quotations omitted). 4
Here, Ms. Rosales’s EEOC Charge is even more deficient than the plaintiff’s charge in
Espy as it fails to provide any indication that Ms. Rosales was asserting, or even attempting to
assert, a disparate impact claim. See [Doc. 11-1]. Ms. Rosales insists that her EEOC Charge
“identifies a continuing course of discrimination over Walmart’s exercise of its policies for her
and other members of her class.” [Doc. 12 at 11]. Ms. Rosales fails, however, to point to any
supporting allegations in the EEOC Charge. See [id.]. Instead, as previously mentioned, she
asserts that her disparate impact claim is premised upon Walmart’s “rigid administration of [its]
policies for the class of employees of which Plaintiff is a member,” and specifies that “she places
her description of her disparate impact claim in a historical context in her [C]omplaint.” [Doc. 12
at 10 (emphasis added)]. In any event, the language in Ms. Rosales’s EEOC Charge speaks for
itself, and it does not support her disparate impact theory. Rather, the Charge concerns Walmart’s
efforts to accommodate Ms. Rosales’s work injury, which, notably, Ms. Rosales claims it did. See
[Doc. 11-1 at 1 (“In January 2020, I was provided with a reasonable accommodation of working
assisting Human Resources. . . . I was reinstated to work in the position of Screener / Cashier, a
position that meets my medical restrictions.”)].
In addition, Ms. Rosales spends much of her Response brief arguing that her Complaint
contains sufficient allegations to support the merits of her disparate impact claim, and thereby
survives dismissal under Rule 12(b)(6). See, e.g., [Doc. 12 at 6 (“As demonstrated herein,
Plaintiff’s Complaint[] ‘possesses enough heft’ to demonstrate not only her entitlement to the relief

4

The “general language” in the EEOC charge that the plaintiff relied upon stated in relevant part:
“Denial of future employment, or not hiring females is not as intrusive as the loss of an opportunity
of an existing highly qualified female employee for promotion . . . The lack of opportunity can
have an adverse financial as well as psychological effect on long term productive female
employees, such as myself, who strive to maintain a Superior rating.” Espy, 854 F. Supp. at 738.
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sought, but provide Walmart sufficient information to warrant the litigation to proceed.”); id. at 10
(“In the post Twombly pleading standard world . . . [a] tediously detailed factual statement is not
required.”)]. However, these arguments are based on a misunderstanding of Defendant’s position,
as well as the administrative exhaustion requirement. Indeed, although a “judicial complaint may
. . . encompass any discrimination like or reasonably related to the allegations of the EEOC
charge,” Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (citation and quotation omitted),
a “plaintiff cannot choose to bypass the administrative [process] by raising new theories of
recovery for the first time with the federal court,” Espy 854 F. Supp. at 737. Accordingly, the
relevant question here is not “whether or not . . . the Charge of Discrimination must be as
exhaustive as [the] Complaint,” as Plaintiff asserts in her Response. [Doc. 12 at 7]. Rather, “the
question before the [C]ourt is whether [P]laintiff’s original EEOC [C]harge encompassed her
disparate impact claim.” Espy, 854 F. Supp. at 737; see also Smith, 904 F.3d at 1164 (10th Cir.
2018) (“The ultimate question is whether the conduct alleged in the lawsuit would fall within the
scope of an EEOC investigation which would reasonably grow out of the [statements] actually
made in the EEOC charge.” (citations, quotations, and alteration marks omitted)).
As explained above—and despite Plaintiff’s assertions to the contrary—none of the
statements in Ms. Rosales’s EEOC Charge describe a disparate impact claim at all, let alone
“identif[y] a continuing course of discrimination over Walmart’s exercise of its policies for [Ms.
Rosales] and other members of her class.” [Doc. 12 at 11]; see also [id. at 10 (stating that her
claim “is based upon the rigid administration of Walmart’s policies for the class of employees of
which Plaintiff is a member”)]. Accordingly, Ms. Rosales’s disparate impact claim in this action
constitutes a new theory of recovery that lacks any reasonable relation to the statements in the
EEOC Charge. In other words, the statements in Ms. Rosales’s Charge are simply insufficient “to

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satisfy the requirement that [a] plaintiff’s disparate impact claim [in federal court] could
reasonably be expected to grow out of the charge of discrimination” that she filed with the EEOC.
Espy, 854 F. Supp. at 738 (quotation omitted); see also Boldridge v. Tyson Foods, Inc., 280 F.
App’x 723, 728 (10th Cir. 2008) (affirming the district court’s finding that the plaintiff’s disparate
impact claim was barred by the plaintiff’s failure to exhaust administrative remedies where the
plaintiff “failed to provide any record citations to allegations from his EEOC charge that would
demonstrate that his disparate impact claim is reasonably related to his claim for intentional
discrimination”); Eyekhobhelo v. City of Colorado Springs, No. 11-cv-00523-MSK-MEH, 2011
WL 4972655, at *2 (D. Colo. Oct. 19, 2011) (dismissing a disparate impact claim for failure to
exhaust, and explaining that although the plaintiff’s EEOC charge “mention[ed] a presumably
facially neutral employment practice, a generally applied test, there [was] nothing to indicate that
she allege[d] the test affect[ed] persons in her protected category more harshly than others”).
Finally, as to Defendant’s request for a dismissal with prejudice, the Court finds that
dismissal of Plaintiff’s claim with prejudice is appropriate here. Generally, “a dismissal based on
a failure to exhaust administrative remedies should be without prejudice.” Gallagher v. Shelton,
587 F.3d 1063, 1068 (10th Cir. 2009). Indeed, “failure to exhaust is often a temporary, curable,
procedural flaw.” Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1139 (10th Cir. 2005) (citation
omitted). However, “dismissal with prejudice is proper for failure to state a claim when ‘it is
obvious that the plaintiff cannot prevail on the facts [s]he has alleged and it would be futile to give
[her] an opportunity to amend.’” Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir.
1999) (citation omitted). Here, an amendment by Plaintiff would be futile because she is already
well beyond the 300-day deadline to file a second charge of discrimination asserting a disparate
impact theory of discrimination based on the same events that are the subject of her Complaint.

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See Martinez v. Million Air Mech. Inc., No. 21-cv-02299-DDD-NRN, 2022 WL 843889, at *3 (D.
Colo. Mar. 22, 2022) (recommending dismissal with prejudice where the plaintiff failed to exhaust
administrative remedies, explaining that “the timeliness analysis . . . is functionally
indistinguishable from a traditional statute of limitations analysis, and it bars any future claim by
Mr. Martinez seeking redress for employment discrimination and retaliation that took place in
2019”); 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)). Accordingly, dismissal of Plaintiff’s sole ADA claim under Count I will be
with prejudice.
CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
(1)

Defendant’s Motion to Dismiss with Prejudice [Doc. 11] is GRANTED;

(2)

Plaintiff’s sole ADA claim under Count I is DISMISSED with prejudice;

(3)

Defendant’s Motion for Summary Judgment [Doc. 22] is DENIED as moot;

(4)

The Trial Preparation Conference set for May 12, 2023 and the five-day Jury Trial
set to begin on May 30, 2023 are hereby VACATED; and

(5)

Defendant is entitled to its costs pursuant to Federal Rule of Civil Procedure 54(d)
and D.C.COLO.LCivR 54.1.

DATED: November 17, 2022

BY THE COURT:
____________________________
Nina Y. Wang
United States District Judge
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