Nicewonder v. Ferguson Enterprises, LLC

Filing 34

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 01/17/2023. IT IS HEREBY RECOMMENDED that the Partial Motion to Dismiss Plaintiff's First Amended Complaint and Request for Jury Trial 19 be GRANTED. (alave, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 22-cv-01062-CMA-KLM
AVALON NICEWONDER, an individual,
Plaintiff,
v.
FERGUSON ENTERPRISES, LLC, a Virginia limited liability company,
Defendant.
_____________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant’s Partial Motion to Dismiss
Plaintiff’s First Amended Complaint and Request for Jury Trial [#19] (the “Motion”).
Plaintiff filed a Response [#24] in opposition to the Motion [#21], and Defendant filed a
Reply [#28]. Pursuant to 28 U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c), the
Motion [#19] has been referred to the undersigned for a recommendation regarding
disposition. See [#29]. The Court has reviewed the briefs, the entire case file, and the
applicable law, and is sufficiently advised in the premises. For the reasons set forth
below, the Court RECOMMENDS that the Motion [#19] be GRANTED.
I. Background1

All well-pled facts from the Amended Complaint [#9] are accepted as true and viewed in
the light most favorable to Plaintiff as the nonmovant. See Barnes v. Harris, 783 F.3d 1185,
1191-92 (10th Cir. 2015).
1

1

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Plaintiff began her tenure with Defendant in February 2019 by participating in its
inside sales trainee program, called the College of Ferguson in Richmond, Virginia, where
she engaged in four months of training in a class of thirteen people. Am. Compl. [#9] ¶¶
20-22. Her trainer and the other trainees voted her as the highest performing employee
in her training class. Id. ¶ 23. After the training ended in June 2019, Plaintiff moved to
her permanent location with Defendant in Colorado. Id. ¶ 24. Before she returned to
Colorado, she went on a site visit for Defendant, where she toured the facility and met
Peter Seyfried (“Seyfried”), her manager. Id. ¶¶ 25-26. At this first meeting, Plaintiff
shared with Mr. Seyfried that she suffered from ADHD, depression, and anxiety, as well
as information showing she was part of the LGBTQ+ community. Id. ¶ 27.
In Colorado, Plaintiff worked as an Inside Sales Representative for Defendant. Id.
¶ 28. Four other Inside Sales Representatives for Defendant worked on a team with her.
Id. ¶ 29. She was the only female on her team and one of only three women working in
Denver for Defendant.

Id. ¶ 30.

Defendant compensated Plaintiff for her work by

paying her an hourly salary of $19.74 for forty-five hours of work per week. Id. ¶ 31.
Inside Sales Representatives generate revenue by promoting and selling the
organization’s products and services by telephone to existing or potential customers. Id.
¶ 32.

They develop and maintain relationships with an assigned customer base,

including key accounts ensuring satisfaction with products and services, and they answer
customers’ questions about products, prices, availability, product uses and credit terms.
Id. ¶ 33.

They also must maintain positive relationships with Defendant’s other

employees such as the warehouse associates, who ensure that orders are properly and

2

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timely filled. Id. ¶ 34.
Defendant has several people working as Warehouse Associates, none of whom
were assigned to a particular Inside Sales Representative but who instead worked on
orders as they were submitted. Id. ¶¶ 35-36. Ruben Quezada-Medrano (“QuezadaMedrano”), a male over 40 years old, worked at Defendant’s Colorado location as a
Warehouse Associate. Id. ¶ 37. Plaintiff met him during her first few weeks of working
in Colorado. Id. ¶ 38. Mr. Quezada-Medrano plays basketball, and he told Plaintiff that
the Warehouse Associates play basketball on Thursday nights, asking her if she would
like to attend a basketball game. Id. ¶¶ 39-40. Because Plaintiff wanted to develop
better relationships with the Warehouse Associates because they affected her production,
she informed Mr. Quezada-Medrano she would like to play basketball, and so they
exchanged phone numbers. Id. ¶ 41. Plaintiff did not give Mr. Quezada-Medrano her
number other than to be friends and possibly play basketball. Id. ¶ 42.
Mr. Quezada-Medrano texted Plaintiff after they exchanged phone numbers. Id.
¶ 43. Plaintiff responded to the text message for the first time on July 10, 2019. Id. ¶
44. Initially, their conversation was about the activities they like to participate in and
where they live, but later Mr. Quezada-Medrano changed the tone of the conversation.
Id. ¶¶ 45-46. He injected information about his personal and private romantic life into
the conversation, and he intimated that he and Plaintiff could enter a romantic
relationship. Id. ¶¶ 47-48. In response to his advances, Plaintiff informed him that she
was younger than him, that she had just left a bad relationship, and that she was a
member of the LBGTQ+ community. Id. ¶ 49.

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After Plaintiff’s response, Mr. Quezada-Medrano sent her six text messages to
which she did not reply. Id. ¶ 50. The text messages became increasingly sexual and
romantic, including when he called her a “youngen” [sic], said he was ready for the right
woman, and commented about how her breasts were at his face level. Id. ¶¶ 51-52.
After not receiving any responses from Plaintiff, Mr. Quezada-Medrano sent her a text
apologizing for his forwardness and saying he wanted to “be [her] freak on a leash sexy.”
Id. ¶ 53. His text message also contained a picture of himself nude. Id. ¶ 54. The
picture and the text messages were disturbing to Plaintiff, as they were unwanted and
unsolicited. Id. ¶ 55.
Plaintiff immediately reported the incident to Mr. Seyfried, her manager, on July
11, 2019, who in turn reported the incident to District Manager Chris Cline (“Cline”) and
Director of Industrial Sales Marc Brown (“Brown”). Id. ¶¶ 56-57. Mr. Seyfried and Mr.
Cline had a meeting with Plaintiff, where they both allegedly blamed her for Mr. QuezadaMedrano’s sexual advances.

Id. ¶¶ 58-59.

They asked her if she had set any

boundaries with him or told him that his conduct was unwanted. Id. ¶ 60. Mr. Cline then
asked Plaintiff if she could go see him at that moment and tell him that his conduct must
stop, which Plaintiff declined. Id. ¶ 61. Mr. Seyfried noticed that she was caught off
guard and offended and/or confused by Mr. Cline asking her to confront Mr. QuezadaMedrano alone on the day after the harassment occurred, that she did not know what to
do, and that she showed signs of distress. Id. ¶ 62. Mr. Seyfried stood up and said,
“Chris, let’s go talk to Ruben,” i.e., Mr. Quezada-Medrano.

Id. ¶ 63.

Plaintiff

emphasizes that the act of confronting Mr. Quezada-Medrano was initiated by Mr.

4

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Seyfried, not Mr. Cline, that Mr. Cline did not ask her if she wanted him to stand up for
her and confront Mr. Quezada-Medrano, and that Mr. Seyfried took control after seeing
her reaction to Mr. Cline’s suggestion. Id. ¶¶ 63-65. Mr. Seyfried asked Plaintiff to stay
in the office until both Mr. Seyfried and Mr. Cline had confronted Mr. Quezada-Medrano.
Id. ¶ 66.
Mr. Cline and Mr. Seyfried met with Mr. Quezada-Medrano, and they told him to
stop contacting Plaintiff, but they took no other actions to protect her from him. Id. ¶¶
67-68. Plaintiff had to see Mr. Quezada-Medrano every day and work with him regularly.
Id. ¶ 69. Defendant did not schedule the two of them to work different shifts or take any
action to prevent Mr. Quezada-Medrano from working on orders for Plaintiff. Id. ¶ 70.
After Plaintiff reported the sexual harassment to Defendant, Defendant began
treating her differently and more adversely, in a manner designed to have a negative
impact on her work performance. Id. ¶ 71. Defendant provided her with less work than
her coworkers and did not supply her with work even though she asked for work on
multiple occasions. Id. ¶¶ 72-73. Defendant’s reluctance to provide her with work led
to decreased performance on her part. Id. ¶ 74. Instead of allowing her to work on her
sales, Defendant required her to visit the clients of other sales representatives and to
perform tasks such as organizing the office, laminating forms, reviewing Material Test
Reports, and developing a customer survey (without access to a budget from Defendant),
which took a substantial amount of time. Id. ¶¶ 75-76. The tasks assigned to her
prevented her from performing the core functions of her position, resulting in decreased
performance. Id. ¶ 77.

5

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Defendant had no issues with Plaintiff’s performance until after her complaint about
the sexual harassment. Id. ¶ 78. After the complaint, Defendant began having issues
with Plaintiff’s punctuality. Id. ¶ 79. The workday for Defendant begins at 7:00 am., and
Defendant claims that Plaintiff regularly failed to show up on time for the start of her shift.
Id. ¶¶ 80-81. However, Defendant would not allow Plaintiff to arrive at work before 6:55
a.m., even though Defendant allowed other employees who were not in Plaintiff’s
protected classes to arrive at work earlier. Id. ¶¶ 82-83. After arriving at work, Plaintiff
had to start up and boot her computer, a process which took at least 8 minutes before
she could begin work.

Id. ¶¶ 84-85.

In short, Plaintiff alleges that she was tardy

because Defendant created special rules for her that made it impossible for her to arrive
on time, and that Defendant did not discipline other employees out of her protected
classes for arriving to work late. Id. ¶¶ 86-87.
At the end of November/start of December, Mr. Seyfried prepared a Performance
Improvement Plan (“PIP”) for Plaintiff. Id. ¶ 88. On December 3, 2019, Plaintiff had to
take an unexpected leave of absence due to personal life issues, which were related to
her treatment in her current work environment and feelings of danger from having to
continue working in such close proximity with Mr. Quezada-Medrano.

Id. ¶ 89.

Plaintiff’s mental health, relating to her trauma at work, caused her to take this leave of
absence.

Id.

Plaintiff went on short-term disability leave from December 3, 2019,

through January 15, 2020. Id. ¶ 90. Throughout her time on leave, Plaintiff kept in
contact with Mr. Seyfried. Id. ¶ 91.
After Plaintiff returned to work, Defendant restricted her access to the workplace

6

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and controlled her daily activities. Id. ¶ 92. Defendant had removed all of Plaintiff’s
major accounts, between nine and twelve of them, and required her to perform menial
tasks such as laminating cards. Id. ¶ 93. Defendant did not inform Plaintiff that it had
removed her biggest accounts from her.

Id. ¶ 94.

Rather, Plaintiff learned that

Defendant had removed her biggest accounts from her only when she overheard a newly
hired coworker speaking to a former customer/client. Id. ¶ 95.
On January 16, 2020, Mr. Seyfried presented the PIP to Plaintiff. Id. ¶ 96. The
PIP concerned Plaintiff’s sales productivity, her attendance, and her attitude. Id. ¶ 97.
Defendant also replaced Mr. Seyfried as her direct supervisor with Zachary Releford
(“Releford”), the Sales Team Manager, allegedly to help Plaintiff improve her
performance, although Mr. Releford was already her supervisor and was already working
closely with her. Id. ¶ 98.
At the time Defendant placed Plaintiff on the PIP it told her it would review the PIP
with her every thirty days. Id. ¶ 99. On February 28, 2020, Plaintiff and Mr. Releford
met regarding her performance on the PIP. Id. ¶ 100. He informed her that he needed
more time to evaluate her but did find instances in which he had seen an improvement in
Plaintiff’s performance. Id. ¶ 101. Mr. Releford rarely met with Plaintiff or followed up
with her regarding the PIP. Id. ¶ 101.
In March 2020, after the start of the COVID-19 pandemic, Defendant transitioned
Plaintiff into a remote position. Id. ¶ 102. On April 16, 2020, Defendant laid off Plaintiff
as part of an alleged company-wide reduction in force (“RIF”). Id. ¶ 103. Plaintiff was
the only employee in her position selected by Defendant for the RIF.

7

Id. ¶ 104.

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Defendant selected her even though she was not the lowest tenured employee in her
position. Id. ¶ 105.
As a result of these allegations, Plaintiff brings eight claims against Defendant: (1)
sex discrimination in violation of Title VII, Am. Compl. [#9] ¶¶ 111-25, (2) sex
harassment/hostile work environment in violation of Title VII, id. ¶¶ 126-38, (3) sexual
orientation discrimination in violation of Title VII, id. ¶¶ 139-46, (4) sex stereotyping in
violation of Title VII, id. ¶¶ 147-57, (5) retaliation in violation of Title VII, id. ¶¶ 158-79, (6)
disability discrimination in violation of the Americans with Disability Act (“ADA”), id. ¶¶
180-89, (7) disability discrimination (regarded as disabled) in violation of the ADA, id. ¶¶
190-98, and (8) disability discrimination (record of disability) in violation of the ADA, id. ¶¶
199-204. In the present Motion [#19], Defendants contend that Plaintiff’s first and fifth
claims should be dismissed in part and all other claims dismissed in full pursuant to Fed.
R. Civ. P. 12(b)(6).
II. Standard of Review
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the
sufficiency of the allegations within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed R.
Civ. P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim
upon which relief can be granted.”). “The court’s function on a Rule 12(b)(6) motion is
not to weigh potential evidence that the parties 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.” Sutton v. Utah State Sch. for the Deaf & Blind, 17 F.3d 1226, 1236

8

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(10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule
12(b)(6), “a complaint must contain enough allegations of fact ‘to state a claim to relief
that is plausible on its face.’” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v.
City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead
sufficient facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal
evidence to support the plaintiff’s allegations.” (quoting Twombly, 550 U.S. at 570)). “A
claim has facial plausibility when the plaintiff pleads factual content 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).

“A pleading that offers labels and

conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor
does a complaint suffice if it tenders naked assertion[s] devoid of further factual
enhancement.” Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in
the complaint “must be enough to raise a right to relief above the speculative level.”
Christy Sports, LLC v. Deer Valley Resort Co., 555 F.4d 1188, 1191 (10th Cir. 2009).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct,” a factual allegation has been stated, “but it has not shown[n][ ]
that the pleader is entitled to relief,” as required by Fed. R. Civ. P. 8(a). Iqbal, 552 U.S.
at 679 (second brackets added; citation and internal quotation marks omitted).
III. Analysis
A.

Claims One and Five: Title VII – Sex Discrimination and Retaliation
9

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Defendant argues that Claim One regarding sex discrimination and Claim Five
regarding retaliation are untimely to the extent they are based on her assignment to
“significantly less demanding and less responsible roles and duties” and her placement
on a PIP.2 Am. Compl. [#9] ¶¶ 122, 168.
Title VII requires a plaintiff to file a charge of discrimination within 300 days of the
discriminatory act that is the subject of the claim. 42 U.S.C. § 2000e-5(e)(1); Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002). Claims based on discrete acts
outside the 300-day period prior to the date of the filing of the charge of discrimination are
time-barred. Morgan, 536 U.S. at 110.
Here, Plaintiff’s Charge of Discrimination is dated February 9, 2021.3 Def.’s Ex.
A [#19-1]. Thus, claims based on acts occurring on or after April 15, 2020, are timely.
See Morgan, 536 U.S. at 110. As outlined in the Background section above, all incidents
regarding PIP and work assignments occurred prior to that date. She alleges that, after
she complained about Mr. Quezada-Medrano’s unwanted contact in July 2019,
Defendant gave her unfavorable work assignments causing her job performance to suffer.
Am. Compl. [#9] ¶¶ 71-86. From December 3, 2019, through January 15, 2020, Plaintiff

Defendant does not seek dismissal of Claim One and Claim Five to the extent they are based
on the termination of Plaintiff’s employment during the RIF. Motion [#19] at 9.
2

The Court may consider the Charge of Discrimination [#19-1] without converting the Motion
[#19] into a motion for summary judgment. See, e.g., Werahera v. Regents of Univ. of Colo., No.
21-cv-02776-NYW, 2022 WL 3645979, at *6 n.5 (D. Colo. Aug. 24, 2022) (considering a Charge
of Discrimination on a motion to dismiss without converting the motion to a motion for summary
judgment because the plaintiff referenced the Charge in the complaint and did not object to the
document’s authenticity) (citing Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.
2002)).
3

10

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took a leave of absence, during which time Defendant removed her biggest accounts to
give to other employees. Id. ¶¶ 90, 93. On January 16, 2020, she returned from leave
and was placed on a PIP. Id. ¶¶ 89, 96. On April 16, 2020, she was laid off. Id. ¶ 103.
Thus, all of the allegations relating to unfavorable work assignments and the PIP occurred
prior to April 15, 2020.
Plaintiff essentially concedes that the unfavorable work assignments and the PIP
cannot form the basis for these claims, although she stresses that they can be considered
as background:
The adverse action common to all [Plaintiff’s] claims is her termination. An
adverse employment action is a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in
benefits.
However, a mere inconvenience or an alteration of job
responsibilities does not qualify as an adverse action. Defendant’s
assigning [Plaintiff] less desirable job duties is not an adverse action under
Title VII. Moreover, courts typically do not find that placing an employee
on a performance improvement plan is a sufficient adverse action under
Title VII. For these reasons, [Plaintiff] did not have an actionable claim until
Defendant terminated her. Moreover, the court can properly consider
discrete incidents outside the 300-day filing period as background evidence.
As shown above, none of [Plaintiff’s] claims solely rely on the PIP or the
unfavorable work assignments. The Court can properly consider the facts
outside the 300 days as background evidence.
Response [#24] at 14-17 (internal citations and quotation marks omitted). While the
Court makes no finding at this time regarding the relevance of the unfavorable work
assignments and the PIP as “background evidence,” the Court finds that they are untimely
as the bases for these claims.
Accordingly, the Court recommends that Plaintiff’s Claim One regarding sex
discrimination and Claim Five regarding retaliation under Title VII be dismissed with
11

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prejudice in part to the extent premised on unfavorable work assignments and the PIP.4
See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006) (“A dismissal
with prejudice is appropriate where a complaint fails to state a claim under Rule 12(b)(6)
and granting leave to amend would be futile.”).
B.

Claim Two: Title VII - Sex Harassment/Hostile Work Environment
In part, Defendant argues that Plaintiff’s second claim, regarding sexual

harassment/hostile work environment, fails to state a claim because it is untimely.
Motion [#19] at 4; Reply [#28] at 2-4. In response, Plaintiff argues that Defendant’s
“termination of [Plaintiff’s] employment on April 16, 2020, is sufficiently related to the
hostile work environment to make her hostile work environment claim timely.” Response
[#24] at 10 (further stating that Plaintiff’s “termination and the facts in her hostile work
environment claim concern the same types of acts”). Plaintiff does not point to any other
timely act to anchor this claim. See id. at 10-11.
Plaintiff’s argument that the Court should deem this claim timely based on the date
of her termination is not supported by legal authority. In Bobelu-Boone v. Wilkie, 526 F.
Supp. 3d 971, 981-82 (2021), a court in the District of New Mexico considered a similar
argument under a similar set of circumstances.

There, the plaintiff had argued:

“Plaintiff's allegedly poor OIG inspection, forced to work overtime and only receiving comp
time, being given conflicting directives, and being asked to look for another job certainly
relates to the final act of her hostile work environment claim, her termination.” Bobelu-

As explained below, the Court recommends dismissal of Plaintiff’s remaining claims in full on
other grounds. However, the Court notes that, to the extent any other claim is also premised on
unfavorable work assignments or the PIP, it is untimely for the reasons explained above.
4

12

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Boone, 526 F. Supp. 3d at 981-82 (emphasis omitted). The court there held that Plaintiff
could not “use her termination to form part of her hostile work environment claim” for two
reasons. Id. at 982. As is pertinent here, the court stated: “[W]hile the Tenth Circuit has
not addressed the question, the majority of circuits have held that discrete acts like
termination cannot form part of a hostile work environment claim.” Id. (citing Moses v.
Dassault Falcon Jet-Wilmington Corp., 894 F.3d 911, 920 (8th Cir. 2018) (stating that
“[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire
are easy to identify” and differ from a hostile environment claim which by its “very nature
involves repeated conduct”) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
115 (2002) (citation omitted)))); see also Guessous v. Fairview Prop. Invs., LLC, 828 F.3d
208, 223 (4th Cir. 2016); Baird v. Gotbaum, 662 F.3d 1246, 1252 (D.C. Cir. 2011).
Plaintiff cites no legal authority to the contrary, and the Court is aware of none. Because
the discrete act of termination on its own cannot make a sexual harassment/hostile work
environment claim timely based on events occurring prior to the termination, Plaintiff’s
claim fails.
Accordingly, the Court recommends that Plaintiff’s Claim Two regarding sexual
harassment/hostile work environment be dismissed with prejudice. See Brereton, 434
F.3d at 1219 (“A dismissal with prejudice is appropriate where a complaint fails to state a
claim under Rule 12(b)(6) and granting leave to amend would be futile.”).
C.

Claim Three: Title VII - Sexual Orientation Discrimination
Title VII makes it unlawful for an employer “to discriminate against any individual

with respect to [her] compensation, terms, conditions, or privileges of employment,
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because of such individual’s race, color, religion, sex, or national origin; or . . . limit,
segregate, or classify his employees or applicants for employment in any way which
would deprive or tend to deprive any individual of employment opportunities or otherwise
adversely affect his status as an employee, because of such individual's race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). In Bostock v. Clayton County,
Georgia, 140 S. Ct. 1731 (2020), the United States Supreme Court held that sexual
orientation is a type of sex discrimination which is therefore also protected by Title VII.
In general, an employment discrimination plaintiff must provide direct evidence of
discrimination or else prove the elements of a prima facie case for employment
discrimination as listed in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802
(1973). See Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012). However,
“[w]hile the 12(b)(6) standard does not require that Plaintiff establish a prima facie case
in her complaint, the elements of each alleged cause of action help to determine whether
Plaintiff has set forth a plausible claim.” Id.
Title VII’s prima facie case for discrimination requires the plaintiff to show that “(1)
she is a member of a protected class; (2) she suffered an adverse employment action;
and (3) the challenged action took place under circumstances giving rise to an inference
of discrimination.” McGowan v. Bd. of Trustees for Metro. State Univ. of Denver, 114 F.
Supp. 3d 1129, 1137 (D. Colo. 2015), aff’d, 645 F. App’x 667 (10th Cir. 2016). Defendant
does not contest that Plaintiff has adequately alleged the first two elements but argues
here that Plaintiff has failed to plausibly allege discriminatory motive which gives rise to a
reasonable inference of discrimination on the basis of her sexual orientation. Motion
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[#19] at 10-12; Reply [#28] at 7; see also Tracy v. Vail Resorts, Inc., No. 21-4145, 2022
WL 16557393, at * (10th Cir. Nov. 1, 2022) (“Thus, to survive the motion to dismiss, [the
plaintiff’s] complaint only needed to allege facts linking [the defendant’s] employment
decisions to a discriminatory . . . motive, and giv[ing] rise to a reasonable inference of
discrimination . . . . (internal citations and quotation marks omitted)).
Here, Plaintiff provides no argument that she was discriminated against on the
basis of her sexual orientation. See Response [#24] at 14. Rather, the entirety of her
argument focuses on her sex as a female. She states:
In her Complaint, [Plaintiff] alleges she was the only female working on her
team. Defendant provided her with less work than her coworkers, who are
not a part of her protected classes. Further, Defendant allowed other
employees not of her protected class to arrive at work early and arrive late.
Finally, [Plaintiff] alleges she was the only employee in her position selected
by [Defendant] for the reduction in force even though she was neither the
lowest performing employee in her position nor the newest employee in her
role. The inference derived from these facts is that Defendant treated her
poorly and did not treat employees not of [Plaintiff’s] protected class the
same as it did [Plaintiff].
Id. Plaintiff fails to point the Court to any allegations which support an inference that she
was discriminated against on the basis of her sexual orientation.

Rather, Plaintiff’s

argument here focuses solely on Plaintiff’s status as a female, which is the basis for her
Claim One regarding sex discrimination under Title VII.
Accordingly, the Court recommends that Plaintiff’s Claim Three regarding sexual
orientation discrimination under Title VII be dismissed without prejudice.

See

Brereton, 434 F.3d at 1219 (stating that a Rule 12(b)(6) dismissal should generally be
without prejudice where granting leave to amend may not be futile).
D.

Claim Four: Title VII - Sex Stereotyping
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A Title VII claim for unlawful sex stereotyping, also known as gender stereotyping,
requires a plaintiff to show that the employer’s discrimination “against her [was] based on
her failure to confirm to stereotypical gender norms.” Potter v. Synerlink Corp., 562 F.
App’x 665, 674 (10th Cir. 2014).
Here, Plaintiff relies on the same argument discussed above in her Claim Three
regarding sexual orientation discrimination under Title VII to show that Defendant’s
alleged unlawful actions occurred under circumstances giving rise to an inference of
discrimination. Again, for the same reasons stated by the Court in connection with Claim
Three, the Court finds that Plaintiff has failed to point the Court to any allegations in
support of this inference. In other words, Plaintiff has not sufficiently alleged that any
discrimination occurred on any basis other than sex, the basis for her Claim One. She
has not described any stereotypical gender norms to which she alleges she failed to
conform and which therefore provided Defendant with motivation to take action against
her in violation of Title VII. Merely arguing that she is a female, without discussing why
the claim survives based on stereotypical gender norms, is insufficient.
Accordingly, the Court recommends that Plaintiff’s Claim Four regarding sex
stereotyping be dismissed without prejudice. See Brereton, 434 F.3d at 1219 (stating
that a Rule 12(b)(6) dismissal should generally be without prejudice where granting leave
to amend may not be futile).
E.

Claims Six, Seven, and Eight: ADA - Disability Discrimination
The parties combine their arguments with respect to Plaintiff’s three ADA claims:

Claim Six regarding disability discrimination (disability), Claim Seven regarding disability
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discrimination (regarded as disabled), and Claim Eight regarding disability discrimination
(record of disability). See 42 U.S.C. § 12102(1) (defining “disability” under the ADA as:
“(A) a physical or mental impairment that substantially limits one or more major life
activities of such individual; (B) a record of such an impairment; or (C) being regarded as
having such an impairment.”).
For ADA disparate-treatment claims (which all of these appear to be, as opposed
to ADA failure-to-accommodate claims), a prima facie case includes the following
elements: (1) the plaintiff is disabled (or regarded as disabled or has a record of disability),
(2) the plaintiff can perform, either with or without reasonable accommodation, the
essential functions of the job, and (3) the defendant terminated (or took other adverse
action) against her because of her disability, perceived disability, or record of disability.
See, e.g., Exby-Stolley v. Bd. of Cnty. Comm’rs, 979 F.3d 784, 794 (10th Cir. 2020).
Here, Defendant does not contest that Plaintiff has adequately alleged the first two
elements, but only that she has not adequately alleged the third. Motion [#19] at 12-14;
Reply [#28] at 10; see Smothers v. Solvay Chems., Inc., 740 F.3d 530, 544 (10th Cir.
2014) (describing the third element as requiring a showing that the adverse employment
action occurred “under circumstances which give rise to an inference that the termination
was based on [her] disability”).
With respect to that third element, Defendant argues:
“[Plaintiff] lack[s] the necessary factual support for an inference of
discrimination based on a disability or perceived disability. There are no
allegations of similarly situated employees and whether they have any
disabilities. There is nothing to connect the decisionmakers on Plaintiff’s
PIP and termination with an anti-disability motive. With respect to her
“regarded-as” claim, in particular, Plaintiff does not even identify the
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disability she was regarded as having, or who regarded her as such. Thus,
Plaintiff’s allegations are insufficient to show that disability discrimination
was “the plausible, rather than just the possible reason” for Defendant’s
actions against her.
Motion [#19] at 15 (internal citations omitted). In response, Plaintiff merely states:
All [Plaintiff] must do to meet her burden at the motion to dismiss stage is
to show she was treated poorly and that others not of her protected class
were treated better than her. [Plaintiff], in each of her ADA claims,
establishes that Defendant treated her poorly. [Plaintiff] then pleads that
the conduct deprived her of rights and working conditions given to
employees, not her protected class. Through these facts, [Plaintiff] raised
an inference of discrimination.
Response [#24] at 15 (internal citation omitted).
Plaintiff relies on DeLesline v. Vilsack, No. 20-cv-03809-RMR-NRN, 2021 WL
4201631, at *4 (D. Colo. Aug. 30, 2021), adopted in relevant part by DeLesline v. Vilsack,
No. 20-cv-03809-RMR-NRN, 2022 WL 4009991 (D. Colo. Mar. 23, 2022), to show that
she has adequately alleged her ADA claims. There, however, the plaintiff had provided
much more detailed allegations with respect to his ADA claim, including:
[A]mong other things, that there were non-disabled, Caucasian employees
who, like Plaintiff, requested extensive leave for temporary medical
conditions, but, unlike Plaintiff, they were not required by the supervisor to
provide burdensome medical information and then threatened with AWOL
or the removal of their supervisory authority if they failed to provide such
information. Plaintiff also claims that his supervisor would exclude him
from meetings and instructed him to issue orders and then would personally
countermand them. However, according to Plaintiff, the supervisor did not
undermine non-disabled, Caucasian employees in this manner, nor did the
supervisor kick them out of their offices for no reason, as he did to Plaintiff.
DeLesline, 2021 WL 4201631, at *4. Here, beyond the general allegations of a disability
and poor treatment, she has failed to direct the Court’s attention to any allegations
showing that Defendant’s adverse action(s) occurred under circumstances giving rise to
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an inference of discrimination on the basis of that disability. See, e.g., Jackson-Cobb v.
Sprint United Mgmt., 173 F. Supp. 3d 1139, 1145 (D. Colo. 2016) (holding that allegations
made upon information and belief that employees outside of the plaintiff’s protected class
were treated differently were conclusory and insufficient to support an inference of
discrimination on a motion to dismiss).
Accordingly, the Court recommends that Plaintiff’s Claims Six, Seven, and Eight
under the ADA be dismissed without prejudice. See Brereton, 434 F.3d at 1219
(stating that a Rule 12(b)(6) dismissal should generally be without prejudice where
granting leave to amend may not be futile).
IV. Conclusion
For the reasons stated above,
IT IS HEREBY RECOMMENDED that the Motion [#19] be GRANTED.5
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v.
Arn, 474 U.S. 140, 147-48 (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). A party’s objections to this

If this Recommendation is adopted in full, Plaintiff’s remaining claims will be Claim One
regarding sex discrimination under Title VII with respect to her employment termination and Claim
Five regarding retaliation under Title VII with respect to her employment termination.

5

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Recommendation must be both timely and specific to preserve an issue for de novo
review by the District Court or for appellate review. United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).

DATED: January 17, 2023

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