Jump To

Top Caption Trial Court Document

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 12, 2026 Get Citation Alerts Download PDF Add Note

Diana L. Farrah v. City County of Denver

District Court, D. Colorado

• Citations: None known
• Docket Number: 1:23-cv-02868

• Precedential Status: Unknown Status

• Opinion

• Authorities (63)

• Cited By (0)

• Summaries (0)

• Similar Cases (20.5K)

• PDF

Trial Court Document

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 1:23-cv-02868-STV

DIANA L. FARRAH,

Plaintiff,

v.

CITY COUNTY OF DENVER,

Defendant.

---

                       ORDER                                        

---

Chief Magistrate Judge Scott T. Varholak

This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s Third
Amended Complaint Under Fed. R. Civ. P. 12(b)(6) (the “Motion”). [#82] The parties have
consented to proceed before a United States Magistrate Judge for all proceedings,
including entry of a final judgment. [#34] This Court has carefully considered the Motion
and related briefing, the entire case file and the applicable case law, and has determined
that oral argument would not materially assist in the disposition of the Motion. For the
following reasons, the Motion is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND1

Plaintiff is a white female in her 60s who worked for the City/County of Denver
(“CCD”) from March 2013 to October 2022. [#79 at 6, 9] Specifically, Plaintiff worked for

1 The facts are drawn from the allegations in Plaintiff’s Third Amended Complaint (the
“Complaint”) [#79], which must be taken as true when considering a motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). Wilson v. Montano, 715 F.3d 847,
850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)).

the Office of Economic Development (“OED”) agency, which around 2020 was split into
two separate agencies, the Housing Stability (“HOST”) and the Denver Economic
Development Opportunity (“DEDO”) agencies. [Id. at 9] After the split, Plaintiff was
employed in the HOST agency. [Id.] Leadership within HOST regularly emphasized racial

and cultural diversity in staffing. [Id. at 14] During one all staff meeting, the head of the
agency “noted with apparent pride the number of foreign languages spoken by staff
members.” [Id. at 16] In one other all staff meeting, a high-level agency official referred
to older employees as “the oldsters” while discussing succession concerns. [Id.] Once,
a black employee “laughed” when Plaintiff expressed interest in advancement. [Id. at 22]

Between 2014 and October 2022, Plaintiff was expected to work a heavy load. [Id.
at 6] Though the agency received approval to hire an additional employee to help with
this workload, it never did. [Id.] Plaintiff noticed that other employees in their 60s were
also assigned excessive workloads. [Id. at 29] At least two younger employees had less
workload than Plaintiff.2 [Id. at 6-7, 33] These two younger employees received

evaluations that appeared to Plaintiff to be inflated, and they received recognition for tasks
that Plaintiff also performed, but for which she did not receive the same recognition. [Id.]

Additionally, Plaintiff noticed that two employees were more friendly toward black
co-workers whereas they were cool and distant toward white co-workers. [Id. at 17-18]

Plaintiff was once told that she could do certain work to enhance her development, but
this work ended up being given to a black co-worker. [Id. at 22] Plaintiff noticed on several

2 It is unclear what position these employees held. It appears that one of the employees
worked for a different agency, the Budget Management Office (“BMO”). [#79 at 23]

occasions that younger employees were promoted despite lacking relevant experience to
their new positions.3 [Id. at 33-34]

Around March of 2022, a job opening for the “Manager of Grants and Compliance”
position opened and Plaintiff applied. [Id. at 6] Plaintiff had approximately 16 years of

experience directly relevant to the position at the time of her application. [Id. at 10] The
position did not require an advanced degree, and Plaintiff met the minimum
requirements.4 [Id. at 11] When Plaintiff interviewed for the position, she felt the
interviewers were hostile toward her and did not engage meaningfully with her. [Id. at 24]

One of the interviewers had previously “disparag[ed] older employees.” [Id.] Due to a
technical difficulty, part of the interview had to be conducted over the phone rather than
by video. [Id.]

In May 2022,5 Plaintiff learned that she did not get the position and that an
individual who was a 51-year-old, black woman was hired (“New Manager”).6 [Id. at 6,
11] It appeared that New Manager knew about the new position before the job opening

3 It is unclear if Plaintiff, or any other individual, also applied to these positions.

4 Plaintiff additionally notes that she had received consistent satisfactory but
unremarkable evaluations prior to applying for the new position. [Id. at 25] However,
Plaintiff also notes that in 2020 Plaintiff’s work was described as “very lacking” by one of
the interviewers for the promotion position. [Id. at 24]

5 At other locations in the Complaint, this date is referred to as May 2023. [See, e.g., id.
at 26] Considering Plaintiff resigned in 2022, the Court assumes this was a typographical
error.

6 Plaintiff also notes that New Manager was hired into a different position, that of Fiscal
Administrator I, despite some documented performance concerns related to accuracy,
communication, and professionalism during her time working at the City BMO. [#79 at
13-14] After this earlier promotion, New Manager received “exceeds expectations” ratings
from her new supervisor. [Id. at 14] The evaluation contained praise for standard job
duties. [Id.] Plaintiff did not receive recognition for completing similar work, though it is
unclear if Plaintiff ever held the position of Fiscal Administrator I or had the same
supervisor. [Id.]

was posted. [Id. at 25] New Manager was less qualified than Plaintiff and was a cousin
of the hiring director, who was also black. [Id. at 6, 11] New Manager had 3.5 years of
experience in senior level positions, whereas Plaintiff had 23 years of senior level
experience. [Id. at 11] In her application, New Manager “appeared to have overstated

her responsibilities” in various of her prior job roles. [Id. at 12] New Manager had no
formal education in accounting, but had received a bachelor’s degree in political science
and a master’s degree in public policy with a financial concentration. [Id. at 15]

Plaintiff was initially told that she wasn’t selected because she would become too
impatient. [Id. at 26] None of Plaintiff’s prior evaluations indicated that she struggled with
patience though New Manager expressed concerns about Plaintiff’s patience, at some
point in time. [Id.] Though this part of the Complaint is hard to understand, it seems that
at some point Plaintiff was in communication with New Manager about why Plaintiff was
not hired, even though New Manager had no role in the hiring decision. [Id. at 27] New
Manager at some point described Plaintiff’s “responses”—presumably those written in

Plaintiff’s application or orally recited during Plaintiff’s interview—as “incomplete.”7 [Id. at
27] Though unclear as to timing, the Complaint alleges that Defendant also described
Plaintiff as “not qualified” for the role. [Id. at 28]

7 The Court is not certain whether this commentary came from New Manager or from the
Finance Director. Plaintiff appears to refer to both New Manager and the Finance Director
as “Employee D” throughout the Complaint. [See, e.g., id. at 8, 11] At times, Plaintiff
refers to the Finance Director as “Employee C.” [See, e.g., id. at 11, 21] Because Plaintiff
appears to be referring to New Manager as “Employee D” in the paragraphs prior to and
after this factual assertion [see, e.g., id. at 26 (“HOST hired Employee D [into the New
Manager position] on March 31, 2023”), 28 (“HOST promoted Employee D”)], the Court
assumes that Plaintiff refers to the same “Employee D” when identifying the individual
that stated Plaintiff’s responses were incomplete. Assuming this is a correct interpretation
of the Complaint, it is unclear why or to what extent New Manager had access to Plaintiff’s
“responses.”

After being hired, New Manager implemented new procedures that increased the
time and complexity of Plaintiff’s audit responsibilities. [Id. at 8] These changes
contradicted the standard practices Plaintiff had used for years prior. [Id.] The changes
impaired Plaintiff’s ability to complete her assignments efficiently. [Id.]

At some point in 2022, after learning that New Manager was hired for the position,
Plaintiff filed a complaint of discrimination.8 [Id. at 6, 7, 18] After this, Plaintiff was
“isolated, denied opportunities to participate in meetings that were relevant to her position
and denied opportunities to attend training that were relevant to her position.” [Id. at 7]

In addition, she was asked to report to New Manager when she had previously reported
to the Finance Director and New Manager started trying to take control of meetings where
Plaintiff had previously been in control. [Id. at 7, 18] New Manager and her supervisor
later implemented a policy that prohibited employees from submitting partially completed
workpapers to external auditors, even though this practice was common and accepted in
the auditing field.9 [Id. at 18]

At some point in time, Plaintiff was not allowed to respond to an audit issue raised
by external auditors even though other employees were regularly afforded this
opportunity. [Id. at 16] When Plaintiff raised concerns about this treatment, New Manager
accused Plaintiff of insubordination. [Id. at 7, 30] On another occasion, Plaintiff made a
minor coding error and New Manager threatened to initiate an audit of Plaintiff’s

8 Plaintiff filed age and race discrimination complaints with the Colorado Civil Rights
Division (“CCRD”). [Id. at 9] The CCRD issued a right to sue letter on September 2,
2023. [Id.]

9 Plaintiff alleges that this policy was designed to discredit Plaintiff’s handling of
subrecipient monitoring but provides no factual support for this conclusion. [Id. at 18]

timecards. [Id. at 19] Normally, these types of errors did not result in formal disciplinary
action or audit threats. [Id.]

Plaintiff resigned in October 2022. [Id. at 8] After Plaintiff resigned, the Finance
Director and New Manager told other agency employees that Plaintiff was fired and had

not adequately performed her job for two years. [Id.] Plaintiff maintains that these
statements were false as Plaintiff was not fired and remains eligible for rehire. [Id. at 8-
9]

Based on these allegations, Plaintiff asserts six claims for relief. First, she asserts
a claim for age discrimination under the Age Discrimination and Employment Act
(“ADEA”). [Id. at 35-39] Second, Plaintiff asserts a claim for retaliation under the ADEA.

[Id. at 39-41] Third, Plaintiff asserts a claim for racial discrimination in violation of Title VII
and the Colorado Anti-Discrimination Act (“CADA”). [Id. at 42-45] Fourth, Plaintiff asserts
a claim for racial discrimination and retaliation under 42 U.S.C. § 1981. [Id. at 46-49]

Fifth, Plaintiff asserts a claim for racial discrimination in violation of the Fourteenth

Amendment pursuant to 42 U.S.C. § 1983. [Id. at 49-52] Sixth, Plaintiff asserts a claim
for retaliation under Title VII and CADA. [Id. at 52-54]

II. LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

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.” In deciding a motion under
Rule 12(b)(6), a 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) (alteration in original) (quoting Smith v. United
States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, 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).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
across the line from conceivable to plausible.’” Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the
court is to “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).

B. Pro Se Litigants

“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same rules of
procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).

III. ANALYSIS

A. Title VII, CADA, Section 1981, and Section 1983 Racial Discrimination

    1.   Discrimination Claims                                      

Defendant argues that Plaintiff has not provided any allegations or evidence that
demonstrate that Defendant declined to promote Plaintiff under circumstances that give
rise to an inference of racial discrimination. [#82 at 10-12] In addition, Defendant argues
that Plaintiff has not demonstrated an adverse employment action taken against her in
her race discrimination for different terms and conditions claim. [Id. at 12-13] The Court
addresses each argument in turn.

Title VII makes it unlawful “to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2(a)(1). Section 1981 provides that all persons in the United States
“shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white
citizens.” Id. § 1981. Section 1983 creates “a remedy against those who, acting under
color of law, violate rights secured by federal statutory or constitutional law.” Ramirez v.
Dep’t of Corr., 222 F.3d 1238, 1243 (10th Cir. 2000) (citing Reynolds v. Sch. Dist. No. 1,
Denver, Colo., 69 F.3d 1523, 1536 (10th Cir. 1995)). “Racial . . . discrimination can violate
the Fourteenth Amendment right to equal protection of the law and state a cause of action
under 42 U.S.C. § 1983.” Id. (citing Poolaw v. City of Anadarko, 660 F.2d 459, 462 (10th
Cir. 1981)).

“A plaintiff proves a violation of Title VII either by direct evidence of discrimination
or by following the burden-shifting framework of” McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012) (citing
Crowe v. ADT Sec. Servs. Inc., 649 F.3d 1189, 1194 (10th Cir. 2011)). Under the

McDonnell Douglas approach, a plaintiff first is required to set forth a prima facie case of
discrimination: “(1) she is a member of a protected class, (2) she suffered an adverse
employment action, (3) she is qualified for the position at issue, and (4) she was treated
less favorably than others not in the protected class.” Id. (citing Sanchez v. Denver Pub.
Sch., 164 F.3d 527, 531 (10th Cir. 1998)). “In racial discrimination suits, the elements of
a plaintiff’s case are the same whether that case is brought under §§ 1981 or 1983 or Title
VII.”10 Carney v. City and Cnty. of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008) (quoting
Baca v. Sklar, 398 F.3d 1210, 1218 n.3 (10th Cir. 2005)). And “CADA discrimination . . .
claims are subject to the same legal standards as Title VII claims.” Agassounon v.
Jeppesen Sanderson, Inc., 688 F. App’x 507, 509 (10th Cir. 2017) (citing Johnson v. Weld

Cnty., 594 F.3d 1202, 1219 n. 11 (10th Cir. 2010); Colo. Civ. Rts. Comm’n v. Big O Tires,
Inc., 940 P.2d 397, 400 (Colo. 1997)).

Title VII “proscribe[s] racial discrimination . . . against whites on the same terms as
racial discrimination against nonwhites.” McDonald v. Santa Fe Trail Transp. Co., 427

10 For municipal liability to arise under Sections 1981 and 1983, a plaintiff must
demonstrate, in addition to the prima facie case, that municipal officials “acted pursuant
to a ‘custom or policy’ of ‘discriminatory employment practices.’” Carney v. City and Cnty.
of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008) (quoting Randle v. City of Aurora, 69 F.3d
441, 446 n.6, 447 (10th Cir. 1995)); Busby v. City of Tulsa, No. 11-CV-447-JED-PJC, 2015
WL 1467817, at *9 (N.D. Okla. Mar. 30, 2015) (citing Carney, 534 F.3d at 1273).

Defendant briefly argues that Plaintiff does not provide any detailed custom or policy to
support her discrimination claim. [#82 at 12] The Court does not address this argument
because Plaintiff’s claims fail for other reasons.

U.S. 273, 279 (1976). For a failure to promote claim, the prima facie elements will involve
a showing that a plaintiff is a member of a protected class, was not promoted, was
qualified for the promotion, and the position remained open or was filled by a member not
of the same protected class. See Stubbs v. McDonald’s Corp., 224 F.R.D. 668, 672 (D.

Kan. 2004) (citing Amro v. Boeing Co., 232 F.3d 790, 797 (10th Cir. 2000)). For a different
terms and conditions claim, a plaintiff must show that they suffered an adverse
employment action. Sanchez, 164 F.3d at 531-32. The Tenth Circuit adopts the following
liberal construction of adverse employment action:

Such actions are not simply limited to monetary losses in the form of wages
or benefits. Instead, we take a case-by-case approach, examining the
unique factors relevant to the situation at hand. Nevertheless, we will not
consider a mere inconvenience or an alteration of job responsibilities to be
an adverse employment action. Id. at 532 (internal quotations and citations omitted). Actions may be deemed to affect
the terms and conditions of a plaintiff’s employment if they “affect[] the likelihood that the
plaintiff will be terminated, undermine[] the plaintiff’s current position, or affect[] the
plaintiff’s future employment opportunities.” Medina v. Income Support Div., 413 F.3d
1131, 1137 (10th Cir. 2005) (citing Roberts v. Roadway Express, Inc., 149 F.3d 1098, 1104 (10th Cir. 1998)). A plaintiff need not show that an employment action caused a significant
injury, but rather that they “experienced ‘some harm respecting an identifiable term or
condition of employment’ as a result of that action.” Scheer v. Sisters of Charity of
Leavenworth Health Sys., Inc., 144 F.4th 1212, 1216 (10th Cir. 2025) (quoting Muldrow v.
City of St. Louis, 601 U.S. 346, 355 (2024)). “This means that an employer’s action ‘must
have left [the plaintiff] worse off, but need not have left her significantly so.’” Id. (quoting
Muldrow, 601 U.S. at 359) (emphasis omitted).

After a plaintiff makes this initial, prima facie showing, the burden shifts to the
defendant who must “produce a legitimate, non-discriminatory reason for the adverse
employment action.” Khalik, 671 F.3d at 1192 (citing Garrett v. Hewlett-Packard Co., 305
F.3d 1210, 1216 (10th Cir. 2002)). “If the defendant does so, the burden then shifts back

to the plaintiff to show that the plaintiff’s protected status was a determinative factor in the
employment decision or that the employer’s explanation is pretext.” Id. (citing Garrett, 305 F.3d at 1216). Thus, “[a] plaintiff ‘may succeed [under the McDonnell Douglas
framework] either directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s proffered explanation
is unworthy of credence.’” Ames v. Ohio Dep’t of Youth Servs., 605 U.S. 303, 309 (2025)
(quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 256 (1981)).

While at the motion to dismiss stage, a plaintiff need not “set forth a prima facie
case for each element, she is required to set forth plausible claims.” Khalik, 671 F.3d at
1193. “[T]he elements of each alleged cause of action help to determine whether Plaintiff

has set forth a plausible claim.” Id. at 1192 (citing Swierkiewicz v. Sorema N.A., 534 U.S.
506, 515 (2002); Twombly, 550 U.S. at 570). Thus, as to a particular claim, “specific facts
are not necessary, [but] some facts are.” Id. at 1193 (internal quotations and citations
omitted).

Here, Plaintiff alleges that she is a white woman who applied for a management
position that was given to a black woman who was “less qualified” in that she had less
relevant experience than Plaintiff. [#79 at 6] Plaintiff further alleges that one of the
interviewers had previously described Plaintiff’s work as “very lacking.”11 [Id. at 24]

Additionally, New Manager seemed to have already known about the position’s availability
before the position was made public. [Id. at 25] Plaintiff was originally told by an
unidentified individual that the reason she was not selected for the position was because

she would become too impatient, though Plaintiff’s previous evaluations did not express
concern with patience. [Id. at 26] In contrast, New Manager stated that Plaintiff’s
responses were “incomplete.” [Id. at 27]

In addition, Plaintiff alleges that she was “not provided with developmental or
advancement opportunities afforded to . . . non-white employees.” [Id. at 14] For
example, after being told she could work on FEMA grants, a black employee informed
Plaintiff that she could not work on the FEMA grants and another black co-worker was at
some point in time permitted to work on the grants. [Id. at 22] Once, when Plaintiff
brought up an interest in advancement, a black co-worker laughed in response. [Id.]

The Complaint also alleges that leadership in Plaintiff’s workplace emphasized

racial and cultural diversity in staffing. [Id. at 14] During one all-staff meeting, the head
of HOST noted with “apparent pride” the number of foreign languages spoken by staff
members. [Id. at 16] Plaintiff perceived that at least two employees were more friendly
toward black employees than white employees. [Id. at 17-18]

These allegations are not sufficient to plead a plausible discrimination claim for
failure to promote or for different terms and conditions. First, Plaintiff provides nothing
more than mere speculation that the decision not to promote Plaintiff was motivated by

11 Plaintiff appears to imply that this comment was motivated by a hostility towards
Plaintiff, though Plaintiff does not allege that the hostility was related to race. [Id. at 23-
24]

racial animus. Plaintiff provides her subjective opinion12 that she was more qualified for
the position at issue and that New Manager’s application contained red flags,13 but she
alleges nothing whatsoever about the duties of the position itself.

Even in the event that it was clear Plaintiff had a greater amount of experience

relevant to the position than New Manager, Plaintiff does not adequately allege that the
decision not to promote Plaintiff was motivated by race. Plaintiff appears to speculate
that race was a deciding factor because New Manager was black and Plaintiff was white,
but Plaintiff does not indicate that any person involved in the promotion decision-making
process had a racial animus. Instead, she appears to allege that the interviewers had a
general hostility toward Plaintiff, possibly based on her age. [#79 at 24]

Nor does Plaintiff’s allegations about the general atmosphere at HOST plausibly
support the conclusion that the failure to promote Plaintiff was racially motivated. An
agency’s general emphasis on racial and cultural diversity does not plausibly imply that
Defendant engaged in racial discrimination by not promoting Plaintiff. Similarly, a leader’s

pride that multiple languages were spoken by agency employees has nothing to do with
race. And neither of the individuals that Plaintiff alleges were friendlier toward black

12 In her response, Plaintiff argues that she supplies more than her subjective opinion and
that she supplies concrete facts about her and New Manager’s credentials and the job’s
minimum and preferred qualifications. [#87 at 15] However, Plaintiff does not provide
any information at all about the qualifications or duties of the position aside from
mentioning that the position did not require an advanced degree. [#79 at 11]

13 Plaintiff additionally alleges that discrepancies in New Manager’s application were
“overlooked” in an “effort to promote African American candidates.” [#79 at 12] But
Plaintiff does not provide any facts to support this assertion. Accordingly, the Court does
not need to accept this conclusory allegation as true. See Hall, 935 F.2d at 1110 (“conclusory allegations without supporting factual averments are insufficient to state a
claim on which relief can be based”).

employees than white employees were alleged to have been involved with the decision
to promote New Manager over Plaintiff.

Accordingly, the only facts Plaintiff pleads to indicate the existence of racial
discrimination in the promotion process are that a black woman who Plaintiff subjectively

identified as less qualified received the position over Plaintiff. And though Plaintiff claims
that New Manager stating that Plaintiff’s answers were “incomplete” indicates pretext,
New Manager was not alleged to have been involved with the promotion decision.14 This
is not sufficient to indicate a racial motive. Plaintiff therefore has not elevated her claims
above the level of mere speculation; thus, the Court does not find that a plausible
allegation of failure to promote has been made.15

Second, Plaintiff does not allege that any adverse action was taken against her
which was motivated by race. Plaintiff makes one specific allegation that she was not

14 The Court reiterates that the Complaint is not entirely clear as to who stated Plaintiff’s
answers were incomplete. Regardless, Plaintiff does not allege that either the Finance
Director or New Manager were involved in the decision not to promote Plaintiff. In
addition, Plaintiff fails to provide any information as to who originally told Plaintiff that she
was not selected because of her impatience.

15 In her response, Plaintiff argues that discriminatory intent can be plausibly inferred in
this case from circumstantial facts such as Defendant’s selection of a black candidate,
Defendant’s waiver or relaxing of stated requirements, Defendant’s offering of shifting
explanations to justify the selection of New Manager, and the backdrop of general
disparate treatment among workers. [#87 at 15] However, Plaintiff never alleged that
Defendant waived or relaxed any requirement for the promotion position. Plaintiff
seemingly alleged that both herself and New Manager met the requirements of the
position, but that Plaintiff believed she had more relevant experience. Nor does Plaintiff
plausibly allege that Defendant has offered shifting explanations for choosing not to
promote Plaintiff. Plaintiff fails to provide any information as to who originally told Plaintiff
that she was not selected because of her impatience. And as explained above, the
“shifting” explanation—that Plaintiff gave incomplete answers—came from someone who
was not involved in the decision-making process. Finally, the Complaint’s vague
assertions that non-white employees received more development opportunities than
white employees do not alone make it plausible that the decision to not promote Plaintiff
was racially motivated.

allowed to work on FEMA grants, but she does not indicate that this caused her any harm
respecting an identifiable term or condition of employment. Indeed, it appears that
Plaintiff believes she was still more qualified for the promotion than New Manager despite
not having worked on FEMA grants.16

And beyond the reference to FEMA grants, the remainder of Plaintiff’s assertions
about not being afforded the same development opportunities as non-white employees
are vague and are therefore not sufficient to state a plausible different terms and
conditions claim.17 Allegations that may meet the adverse employment action standard
promulgated by the United State Supreme Court include actions such as being
transferred to another job with a less regular schedule, having primary duties changed,
and losing job perks such as having a take-home car. Muldrow, 601 U.S. at 359. Here,
Plaintiff does not identify any particular development opportunities she was prohibited
from attending nor how her inability to participate caused a specific harm respecting an
identifiable term of condition of her employment. Accordingly, Plaintiff has not plausibly

alleged a claim of racial discrimination in the form of different terms and conditions.

16 Plaintiff appears to allege that New Manager was allowed to work on FEMA grants at
some point in time. [#79 at 22] However, the Court again notes that the identity of
“Employee D” (who the Court assumes was New Manager in this context) is not clear, as
it appears to change throughout the Complaint.

17 In her response, Plaintiff argues that she alleges she also lost professional standing,
had her job responsibilities reduced, and was placed in a less favorable position in the
organizational hierarchy. [#87 at 18] However, none of these allegations are tied to racial
discrimination in the Complaint. To the extent any specifics are provided in the Complaint,
Plaintiff implies that these actions were motivated by retaliation. [#79 at 18] There is no
indication that anyone involved with these actions was motivated by racial discrimination.

Plaintiff also argues that she alleged she was assigned a disproportionately higher
workload and excluded from certain meetings. [#87 at 18] However, again, Plaintiff does
not allege that these actions were motivated by racial discrimination. Rather, she alleges
they were motivated by age discrimination and retaliation. [#79 at 18]

The Court therefore GRANTS the Motion to the extent that it seeks to dismiss the
failure to promote and different terms and conditions components of Claims Three, Four,
and Five.

2. Hostile Work Environment Claims

Though she does not bring it as a separate count, Plaintiff also asserts that she
was subject to a hostile work environment because of her age and race. [See, e.g., #79
at 8, 10, 17-21] Defendant argues that this claim should be dismissed because the facts
alleged do not rise to the minimum threshold needed to support a claim for relief. [#82 at
13] “[I]n addition to prohibiting discrete acts of discrimination, Title VII also protects
employees from racially hostile work environments.” Young v. Colo. Dep’t of Corr., 94
F.4th 1242, 1249 (10th Cir. 2024) (citing Tademy v. Union Pac. Corp., 614 F.3d 1132, 1138 (10th Cir. 2008)). “A hostile work environment claim requires a showing that the plaintiff’s
‘workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or sufficiently pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.’” Hakeem v. Denver Pub.
Schs., No. 20-cv-00083-PAB-KLM, 2020 WL 4289422, at *8 (D. Colo. July 7, 2020)
(quoting Williams v. FedEx Corp. Servs., 849 F.3d 889, 897 (10th Cir. 2017)), report and
recommendation adopted, 2020 WL 4287181 (D. Colo. July 27, 2020).

“To establish a prima facie case of hostile work environment, a plaintiff must show:
(1) the harassment was pervasive or severe enough to alter the terms, conditions, or
privilege of employment, and (2) it must stem from the animus against a protected class
to which the defendant thinks the plaintiff belongs.” Slover v. Univ. of Colo., No. 21-cv-
01378-SKC, 2022 WL 833364, at *4 (D. Colo. Mar. 20, 2022) (citing Bloomer v. United
Parcel Serv., Inc., 94 F. App’x 820, 825 (10th Cir. 2004)). In evaluating a hostile work
environment claim, the Court “look[s] to all the circumstances, including the frequency of
the discriminatory conduct; its severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably interferes with an employee’s

work performance.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)
(quotation omitted). “A discriminatory and abusive environment must affect the
employee’s work environment so substantially as to make it intolerable for her to
continue.” Creamer v. Laidlaw Transit, Inc., 86 F.3d 167, 170 (10th Cir. 1996) (quoting
the district court opinion which the Tenth Circuit concluded was an “accurate discussion
of the applicable law”).

“General harassment alone is not actionable.” Williams, 849 F.3d at 897 (citing
Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)). “The mere utterance of a
statement which ‘engenders offensive feelings in an employee’ would not affect the
conditions of employment to [a] sufficiently significant degree to violate Title VII.” Gross

v. Burggraf Constr. Co., 53 F.3d 1531, 1537 (10th Cir. 1995) (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)). The standards and burdens of establishing a
hostile work environment under Section 1981 are the same as those under Title VII. See
Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir. 1997) (citing Bolden, 43 F.3d at
550; Durham v. Xerox Corp., 18 F.3d 836, 838-39 (10th Cir. 1994))

With respect to her hostile work environment claim, Plaintiff alleges that at least
two co-workers were “friendlier” towards black employees than white employees. [#79 at
17-18] In addition, after filing a complaint regarding racial and age discrimination, Plaintiff
began to be excluded from team meetings. [Id. at 18] Plaintiff further alleges that she
was denied certain personal development opportunities that were offered to less qualified
employees. [Id.] Plaintiff alleges that New Manager took control of meetings that Plaintiff
previously controlled and created and implemented a new policy that barred employees
from submitting partially completed papers. [Id.] Finally, Plaintiff asserts that she was not

allowed to rebut certain audit findings, New Manager once threatened to initiate an audit
of Plaintiff’s timecards after she committed a minor coding error, and Plaintiff was accused
of insubordination.18 [Id. at 19]

These allegations are not sufficient to create a plausible claim of a hostile work
environment. Plaintiff has not alleged that racial animus toward her was either severe or
pervasive. Indeed, Plaintiff does not allege that most of the actions related to her hostile
work environment claim were even motivated by a racial animus.19 For example, Plaintiff
does not allege that New Manager took control of meetings because she had a racial
animus toward Plaintiff, Plaintiff does not allege that she was prevented from rebutting
certain audit findings because of her race, and Plaintiff does not allege that New Manager

threatened to initiate an audit of Plaintiff’s timecards because of a racial animus. The only
claim Plaintiff makes that involves a racial animus is that at least two of her co-workers

18 Plaintiff also asserts once in the Complaint that “race-based favoritism and derogatory
comments about white employees were tolerated during official diversity trainings and
workplace culture discussions.” [#79 at 43] Plaintiff does not provide any facts in support
of this conclusion. It is unclear if the derogatory commentary Plaintiff refers to was
leadership pride regarding foreign-language speakers, or if Plaintiff references other
instances which she fails to allege in the Complaint. Regardless, this allegation without
any additional information does not make Plaintiff’s hostile work environment claim
plausible.

19 Many of the facts Plaintiff alleges in support of her hostile work environment claim are
actions Plaintiff implies were motivated by retaliation. [See, e.g., id. at 18 (alleging that
her exclusion from meetings occurred after Plaintiff filed a complaint about race and age
discrimination)] Nothing in the Complaint indicates that these acts were motivated by a
racial animus.

were generally friendlier toward black employees than white employees. It is implausible
that this fact alone amounts to harassment, let alone harassment so severe and pervasive
to have created an abusive, intolerable environment. Accordingly, the Court GRANTS
the Motion to the extent that it seeks dismissal of any hostile work environment

component of Claims Three and Four.

B. Title VII, CADA, and Section 1981 Retaliation

Defendant argues that Plaintiff does not provide plausible assertions in support of
her retaliation claims. [#82 at 7-9] Title VII makes it unlawful for an employer to retaliate
against an employee “because [s]he has opposed any practice made an unlawful
employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). In the Tenth Circuit,
“a plaintiff bringing a retaliation claim ‘must establish that retaliation played a part in the
employment decision and may choose to satisfy this burden in two ways.’” Twigg v.
Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011) (quoting Fye v. Okla. Corp.
Comm’n, 516 F.3d 1217, 1224-25 (10th Cir. 2008)). A plaintiff may either directly establish

that retaliation played a motivating part in the employment decision or rely on the three-
part framework established in McDonnell Douglas to indirectly prove retaliation. Id. (citing
Fye, 516 F.3d at 1225, 1227).

Under the McDonnell Douglas/indirect approach, the plaintiff must first make out a
prima facie case of retaliation by showing: “(1) that [s]he engaged in protected opposition
to discrimination, (2) that a reasonable employee would have found the challenged action
materially adverse, and (3) that a causal connection existed between the protected
activity and the materially adverse action.” Somoza v. Univ. of Denver, 513 F.3d 1206,
1212 (10th Cir. 2008) (quotation omitted). “If the plaintiff establishes a prima facie case,
the employer must then offer a legitimate, nonretaliatory reason for its decision.” Twigg, 659 F.3d at 998 (citing Somoza, 513 F.3d at 1211). “Finally, once the employer has
satisfied this burden of production, the plaintiff must show that the employer’s reason is
merely a pretext for retaliation.” Id. (citing Somoza, 513 F.3d at 1211).

An employer’s action is materially adverse if it “might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Burlington N. and Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quotation omitted). “CADA . . . retaliation
claims are subject to the same legal standards as Title VII claims.” Agassounon, Inc., 688 F. App’x at 509 (citing Johnson, 594 F.3d at 1219 n. 11; Colo. Civ. Rts. Comm’n, 940
P.2d at 400). And “the showing required to establish retaliation is identical under § 1981
and Title VII.” Twigg, 659 F.3d at 998 (quoting Roberts, 149 F.3d at 1110).

As previously stated, at the pleading stage, a plaintiff “is not required to set forth a
prima facie case for each element.” Khalik, 671 F.3d at 1193. However, a plaintiff must
set forth plausible claims, and the elements of an alleged cause of action help to

determine whether a claim is plausible. Id. at 1192. “Unless there is very close temporal
proximity between the protected activity and the retaliatory conduct, the plaintiff must offer
additional evidence to establish causation.” O’Neal v. Ferguson Constr. Co., 237 F.3d
1248, 1253 (10th Cir. 2001). For example, “[w]ithout other evidence, three or more
months between the protected activity and the adverse action is insufficient to establish
a causal connection.” Kenfield v. Colo. Dep’t of Pub. Health & Env’t, 557 F. App’x 728,
733 (10th Cir. 2014) (citing Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997)).

Plaintiff’s allegations in support of her retaliation claim are very sparse. Plaintiff
alleges that she filed a race discrimination claim with the CCRD, but does not explain
when this occurred. [#79 at 9] Plaintiff does not explain who was aware of the claim or
when they may have become aware of the claim.20

Instead, Plaintiff makes general allegations about changes she experienced over
the course of her employment. For example, she alleges that, at some point after filing

the complaint, she began to be excluded from team meetings and policy development
meetings. [Id. at 18] In addition, she alleges that New Manager started to take over
control of certain meetings Plaintiff previously controlled and helped implement a policy
which barred employees from submitting paperwork in ways that were accepted in the
auditing field. [Id.] Plaintiff alleges that she was not allowed to rebut audit findings related
to her assignments, though other employees were, and when Plaintiff complained she
was accused of insubordination. [Id. at 19, 30] She further alleges that New Manager
threatened to initiate an audit of Plaintiff’s timecards after a “minor coding error.” [Id. at
19] And, finally, Plaintiff alleges that, after she quit, the Finance Director and New
Manager told other employees that Plaintiff had been fired and had not performed her job

adequately for two years.21 [Id. at 8]

20 Though Plaintiff argues in her response that she specifies that she filed the charge of
discrimination with the CCRD and the EEOC, and that she need not plead the exact date
or recipient of each communication [#87 at 10], she must at least plausibly plead that the
allegedly retaliatory actions were undertaken by someone who knew about Plaintiff’s
complaint. Plaintiff does not do so here. Plaintiff further argues in her response that she
pleads temporal proximity and decision-maker knowledge [id. at 11], but she does not cite
to the portion of the Complaint where she purportedly pleads such facts and the Court
cannot find any such factual allegations in the Complaint. Thus, it is not clear from the
Complaint when Plaintiff complained, when she began experiencing allegedly retaliatory
actions, or what decision-makers were aware of the complaint.

21 In Plaintiff’s response, Plaintiff also states that she alleged that “Employee E,” a
younger male employee, restricted Plaintiff’s communications, limited her participation in
group assignments, and implemented practices that impaired her ability to perform
required monitoring duties and to rebut audit findings. [#87 at 13] The Court cannot find
any of these allegations in the Complaint, and thus does not consider them here.

These facts do not sufficiently allege retaliation. Like in Khalik, Plaintiff fails to
provide any context as to when Plaintiff complained or to whom. See Khalik, 671 F.3d at
1194. There is no allegation of any nexus between the person(s) to whom Plaintiff
complained and New Manager or any other individual who engaged in the conduct

Plaintiff alleges to have been retaliatory. Like in Khalik, Plaintiff provides nothing more
than “sheer speculation” to link any of the aforementioned actions to a retaliatory motive.

See id. This is insufficient to state a plausible claim of retaliation under Title VII or CADA.

See id. While the Tenth Circuit “do[es] not mandate the pleading of any specific facts in
particular,” Plaintiff should have some knowledge of details that she could plead to satisfy
the plausibility requirement. Id. For example, Plaintiff should know who she complained
to, when she complained, when the allegedly retaliatory actions occurred, and why she
believed that those actions had a retaliatory motive. Plaintiff’s Title VII, Section 1981, and
CADA retaliation claims are apparently based solely on the fact that at some point in time

Plaintiff complained to an unidentified individual through an unidentified mechanism about
racial discrimination, and at some other future point, Plaintiff experienced some changes
in her employment. Without more, this claim is not plausible under the Twombly/Iqbal
standard. Accordingly, the Court GRANTS the Motion to the extent that it seeks dismissal
of Claim Six and the retaliation component of Claim Four.

C. ADEA Discrimination

1. Discrimination Claim

Defendant argues that Plaintiff’s age discrimination claim should be dismissed
because Plaintiff has not asserted any plausible facts in support of the claim. [#82 at 2-
7] Under the ADEA, it is unlawful for an employer “to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because
of such individual’s age.” 29 U.S.C. § 623 (a)(1). “To prove a prima facie case of age
discrimination, a plaintiff must show: ‘1) she is a member of the class protected by the

[ADEA]; 2) she suffered an adverse employment action; 3) she was qualified for the
position at issue; and 4) she was treated less favorably than others not in the protected
class.’” Jones v. Okla. City Pub. Schs., 617 F.3d 1273, 1279 (10th Cir. 2010) (quoting
Sanchez, 164 F.3d at 531). For a failure to promote claim under the ADEA, the prima
facie case will thus require a plaintiff to demonstrate that: (1) she was a member of a
protected class, (2) she applied for and was qualified for the promotion, (3) she was
rejected despite her qualifications, and (4) the position was later filled by someone outside
of the protected class. MacKenzie v. City and Cnty. of Denver, 414 F.3d 1266, 1277-78 (10th Cir. 2005), abrogated on other grounds by, Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018). The class protected by the ADEA are individuals who are aged 40 or

older. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996).

When asserting a different terms and conditions discrimination claim, a plaintiff
must identify an adverse action which was taken against them. See Jones, 617 F.3d at
1279. Like adverse employment actions under Title VII, the Tenth Circuit takes a case-
by-case approach to determining whether particular actions qualify as adverse
employment actions. Id. Allegation of a mere inconvenience will not suffice. Id. Nonetheless, a plaintiff need not show that an adverse employment action caused a
significant injury, but rather that they “experienced ‘some harm respecting an identifiable
term or condition of employment’ as a result of that action.” Scheer, 144 F.4th at 1216
(quoting Muldrow, 601 U.S. at 355). Further, “to succeed on a claim of age discrimination,
a plaintiff must prove by a preponderance of the evidence that her employer would not
have taken the challenged action but for the plaintiff’s age.” Jones, 617 F.3d at 1277 (citing Gross v. FLB Fin. Servs., Inc., 557 U.S. 167, 176 (2009)).

With respect to her age discrimination claim, Plaintiff alleges that she applied for
the Manager of Grants and Compliance position when she was 65. [#79 at 6] 51 year-
old New Manager, who was ultimately hired, appeared to have been aware of the position
opening before it was publicly announced. [Id. at 11, 25] Plaintiff alleges that New
Manager was hired despite the fact that Plaintiff had more experience. [Id. at 11-12]
Plaintiff was told that she was not promoted because she would become too impatient,
though her evaluations never identified any concerns with impatience. [Id. at 26] New
Manager subsequently suggested Plaintiff’s responses in the application and/or interview
were incomplete. [Id. at 27] These are similar to Plaintiff’s race discrimination allegations.
With respect to the age discrimination claim, however, there is more. According to

the Complaint, one of the interviewers was a younger male who Plaintiff had previously
attempted to train. [Id. at 23-24] Another interviewer had previously disparaged older
employees. [Id. at 24] For example, this interviewer had overseen the exit of an older
worker in her department and had shown “overt irritation” when Plaintiff asked questions.

[Id.] The interviewers did not appear engaged in the interview with Plaintiff. [Id.]

In addition to these allegations specifically related to the Manager of Grants and
Compliance Position, Plaintiff alleges that she perceived that the majority of individuals
who were promoted or hired into management positions at HOST were young people.

[Id. at 15, 29, 33] One example of this was a younger male employee who was promoted
even though Plaintiff was more experienced, Plaintiff had herself trained the younger
employee, and Plaintiff had needed to correct significant regulatory errors made by the
younger employee. [Id. at 33-34] Plaintiff’s workload far exceeded that of the younger
male employee. [Id. at 7] And although HOST had received approval to hire another

employee to help with this workload, it never hired anyone while Plaintiff remained
employed. [Id. at 6, 22-23]

In addition, Plaintiff observed that generally employees in their 60s were subjected
to excessive workloads and treated with hostility by supervisors. [Id. at 29] At least two
younger employees had more downtime than Plaintiff for development. [Id. at 7] These
employees were given accolades for tasks that Plaintiff performed but for which she was
never recognized. [Id. at 7] Plaintiff also alleges that younger employees were favored
in performance evaluations. [Id. at 33] And, indeed, in one all staff meeting, senior
leadership referred to older employees as “the oldsters” when discussing succession
concerns. [Id. at 16]

Thus, unlike Plaintiff’s racial discrimination claim, Plaintiff has provided sufficient
detail to plausibly allege an age-based failure to promote claim and a different terms and
conditions claim. First, Plaintiff adequately alleges that she was 65 years old, was
qualified for a promotion, did not receive the promotion, and the person who was
promoted was 14 years younger than her. In addition, Plaintiff alleges that at least one
of the interviewers for the promotion had previously disparaged older employees and was
particularly irritated by Plaintiff. Plaintiff also alleges that older employees generally were
not promoted and provides a specific example of a younger employee being promoted
despite having less experience and having demonstrated a poor quality of work. This is
sufficient to create a plausible inference that the decision not to promote Plaintiff was
motivated by discrimination on the basis of Plaintiff’s age. See, e.g., Cline v. Clinical
Perfusion Sys., Inc., 92 F.4th 926, 935-36 (10th Cir. 2024) (finding allegations that an
employer hired younger, less qualified employees and indications that the employer’s

reasoning for failing to hire a plaintiff were false is sufficient to plausibly allege a claim
under the ADEA).

Second, Plaintiff alleges that she was subjected to excessive workloads because
of her age, as were other older employees. Plaintiff identifies specific younger employees
that were given lesser workloads, and she notes that this was a trend across the agency.

Plaintiff alleges that she was not able to develop in her career as a result of a lack of down
time. This is not a mere inconvenience. Rather, this appears to have harmed the
condition of Plaintiff’s employment and her ability to be promoted. At this stage, Plaintiff
need only make a plausible allegation that she experienced different terms and conditions
because of her age. She does so here. Accordingly, the Court DENIES the Motion to the

extent that it seeks to dismiss the failure to promote and different terms and conditions
components of Claim One.

2. Hostile Work Environment Claim

As previously stated, though Plaintiff does not bring it as a separate count, Plaintiff
also asserts that she was subject to a hostile work environment because of her age and
race. [See, e.g., #79 at 8, 10, 17-21] Defendant argues that this claim should be
dismissed because Plaintiff provides little to no detail supporting the claim outside of
conclusory assertions. [#82 at 13-14] Under the ADEA, an employer may not
“discriminate against any individual with respect to his compensation, terms, conditions,
or privileges of employment, because of such individual’s age.” 29 U.S. § 623(a)(1). “Age
discrimination can form the basis of a hostile-environment claim if (1) the employee was
discriminated against because of her age; and (2) the discrimination created a workplace
so permeated with severe or pervasive intimidation, ridicule, and insult, that it altered the

employment conditions and created an abusive working environment.” Howell v. New
Mexico Dep’t of Aging & Long Term Servs., 398 F. App’x 355, 359 (10th Cir. 2010) (citing
Mackenzie, 414 F.3d at 1280)

Like a hostile work environment claim under Title VII, a plaintiff alleging a hostile
work environment claim under the ADEA must establish that the working environment
was “both subjectively and objectively hostile or abusive.” Mackenzie, 414 F.3d at 1280 (citing Harris, 510 U.S. at 23; Davis v. U.S. Postal Serv., 142 F.3d 1334, 1341 (10th Cir.
1998)). To determine whether a working environment was hostile and abusive, courts
look to circumstances including: “(1) the frequency of the discriminatory conduct; (2) the
severity of the conduct; (3) whether the conduct is physically threatening or humiliating,

or a mere offensive utterance; and (2) whether the conduct unreasonably interferes with
the employee’s work performance.” Id. (citing Harris, 510 U.S. at 23). “The Supreme
Court has instructed that courts judging hostility should filter out complaints attacking the
ordinary tribulations of the workplace, such as the sporadic use of age-related jokes, and
occasional teasing.” Id. (citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

Like her Title VII and Section 1981 hostile work environment claims, Plaintiff fails
to plausibly allege a hostile work environment claim under the ADEA. Plaintiff alleges that
she was excluded from team meetings, that New Manager took control of meetings
Plaintiff previously controlled, that New Manager implemented a new policy that affected
all employees including Plaintiff, that Plaintiff was not allowed to rebut audit findings in
one case, and that once New Manager threatened to initiate an audit of Plaintiff’s time
cards. [#79 at 18-19] Plaintiff does not make any allegation that any of these actions
were motivated by any individual’s consideration of Plaintiff’s age.

Plaintiff makes only three allegations regarding a hostile work environment that
directly implicate age. First, Plaintiff alleges that she was denied unspecified
development and advancement opportunities that were afforded to younger co-workers.

[Id. at 18] Second, Plaintiff alleges she had a heavier workload than younger employees.

[Id. at 7] Finally, Plaintiff alleges that a senior official on one occasion referred to older
employees as “the oldsters” during a discussion of succession planning. [Id. at 38] But
these allegations do not support a plausible inference that Plaintiff’s workplace was so
permeated with severe or pervasive intimidation, ridicule, and insult that the environment
Plaintiff worked in could be characterized as abusive. A single comment which could be
deemed offensive concerning age is not sufficient to support a hostile work environment

claim under the ADEA. Denial of certain advancement opportunities without any further
information does not further push Plaintiff’s hostile work claim into the category of
plausible. Nothing Plaintiff alleges plausibly suggests that Plaintiff was subjected to
severe or pervasive harassment or abuse related to her age. Accordingly, the Court
GRANTS the Motion to the extent that it seeks dismissal of the portion of Claim One that
asserts a claim for hostile work environment.

D. ADEA Retaliation

Defendant argues that Plaintiff does not plausibly allege retaliation. [#82 at 7-9]

Under the ADEA, it is “unlawful for an employer to discriminate against any of his
employees . . . because such individual . . . has opposed any practice made unlawful” by
the ADEA. 29 U.S.C. § 623 (d). When a plaintiff lacks direct evidence of ADEA retaliation,
the McDonnell Douglas burden-shifting scheme applies. Hinds v. Sprint/United Mgmt.
Co., 523 F.3d 1187, 1201 (10th Cir. 2008). “A prima facie case of retaliation requires the

plaintiff to show that (1) he or she engaged in protected opposition to discrimination, (2)
a reasonable employee would have considered the challenged employment action
materially adverse, and (3) a causal connection existed between the protected activity
and the materially adverse action.” Id. at 1202 (citing Montes v. Vail Clinic, Inc., 497 F.3d
1160, 1176 (10th Cir. 2007)).

Like Plaintiff’s retaliation claims under Title VII, CADA, and Section 1981, Plaintiff
has not plausibly asserted a retaliation claim here. Again, Plaintiff does not provide any
information about when she complained about age discrimination or to whom she made
such a complaint. Plaintiff provides no nexus between the person(s) to whom Plaintiff
complained and New Manager or any other individual who engaged in the conduct

Plaintiff alleges to have been retaliatory. Instead, any link Plaintiff provides between
actions and an allegedly retaliatory motive is mere speculation.22 This is insufficient to
state a plausible claim of retaliation under the ADEA. Accordingly, the Court GRANTS
the Motion to the extent that it seeks dismissal of Claim Two.

E. Additional Claims for Relief

Plaintiff includes a final paragraph in her Complaint which states “[a]dditional
claims for relief as new causes of action were noted in motions related to the incorrectly

22 Plaintiff’s statement that the alleged retaliatory actions occurred “in close temporal
proximity” to Plaintiff’s filing of her Complaint is conclusory and, without factual support,
does nothing to bolster Plaintiff’s claims. [#79 at 40-41]

named party; Plaintiff ran out of time to add this information.” [#79 at 54] Plaintiff clarifies
that this paragraph adds no new legal theories, elements, or statutory bases. [#87 at 22]

Accordingly, the Court does not address Defendant’s arguments as to this paragraph.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion to Dismiss Plaintiff’s Third
Amended Complaint Under Fed. R. Civ. P. 12(b)(6) [#82] is DENIED to the extent that it
seeks to dismiss the ADEA discrimination based on failure to promote and different terms
and conditions components of Claim One and GRANTED to the extent that it seeks to
dismiss all other claims and the hostile work environment component of Claim One.
Accordingly Claims Two through Six, and the hostile work environment component of
Claim One are DISMISSED WITHOUT PREJUDICE. See Oxendine v. Kaplan, 241 F.3d
1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal
with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on
the facts he has alleged and it would be futile to give him an opportunity to amend”

(quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding
prejudice should not attach to dismissal when plaintiff has made allegations “which, upon
further investigation and development, could raise substantial issues”). The stay that had
been previously imposed is LIFTED. A scheduling conference is set for April 9, 2026 at
9:30 a.m. The parties shall submit a joint proposed scheduling order by April 2, 2026.
DATED: March 12, 2026 BY THE COURT:

                             s/Scott T.  Varholak                   
                             Chief United States Magistrate Judge