Opinion
Civil Action No. 20-cv-00083-PAB-KLM
07-07-2020
AHMED A. HAKEEM, Plaintiff, v. DENVER PUBLIC SCHOOLS, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant's Motion to Dismiss Plaintiff's Amended Complaint [#15] (the "Motion"). Plaintiff, who is proceeding pro se, filed a Response [#24], and Defendant filed a Reply [#28]. The Court has reviewed the Motion, the Response, the Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court respectfully RECOMMENDS that the Motion [#15] be GRANTED.
"[#15]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Recommendation.
The Motion [#15] has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and D.C.COLO.LCivR 72. See [#16].
The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [her] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
I. Background
For the purposes of resolving the Motion [#15], the Court accepts as true all well-pled, as opposed to conclusory, allegations made in Plaintiff's Amended Complaint [#6]. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).
At the outset, the Court notes that the Amended Complaint [#6] is exceedingly thin on allegations. Plaintiff is a 62-year-old African American male. Am. Compl. [#6] at 2. Defendant is a public school district in Denver, Colorado. Id. ¶ 2. Plaintiff was employed as a paraprofessional at Defendant's George Washington High School (the "School") from February 10, 1996 to July 17, 2018. Id. ¶¶ 8, 9; Termination Letter [#15-1] at 1. As a paraprofessional, Plaintiff worked with at-risk students in the anger management program. Id. ¶ 9. Having received his last job evaluation of 4.8 out of 5, Plaintiff asserts that he is actually overqualified for his job position. Id. at 2.
To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint and exhibits attached to the complaint. See 5A C. Wright & Miller, Federal Practice and Procedure § 1357, at 299 (2d ed. 1990). Therefore, extraneous arguments in a responsive brief may not be relied upon to circumvent pleading defects. See Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995). Here, Plaintiff raises numerous allegations for the first time in his Response [#24]. However, Plaintiff may not cure any deficiencies in his Amended Complaint [#6] by adding factual allegations in his Response [#24].
When considering a motion to dismiss pursuant to Rule 12(b)(6), the Court must usually disregard matters outside the pleadings unless the Court converts the motion into a motion for summary judgment. Jackson v. Integra Inc., 952 F.2d 1260, 1261 (10th Cir. 1991). However, a court may consider "(1) documents that the complaint incorporates by reference, [and] (2) 'documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity. . . .'" Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Here, Plaintiff attached an illegible and incomplete copy of his Termination Letter to the Amended Complaint [#6]. Defendant attached the same Termination Letter [#15-1] to its Motion [#15] in a legible and complete form. Because Plaintiff explicitly refers to and relies on the Termination Letter, and its authenticity does not appear disputed, the Court considers it in connection with the Motion [#15].
Plaintiff asserts that Defendant discriminated against him on the basis of his race and age. See generally Am. Compl. [#6]. The claims arise from Plaintiff's interaction with a student at the School. Id.
Plaintiff thus alleges that, while performing his teaching duties, he "was attacked by a very violent student with a background in gang activity and gang violence" on at least two separate occasions. Am. Compl. [#6] ¶ 10. On January 17, 2018, the student directed a vulgar comment toward Plaintiff and then attacked him in the School's hallway. Id. Plaintiff responded by fending off the attack with his briefcase. Id.
Thereafter, on January 26, 2018, the Assistant Principal of the School, Gideon Geisel ("Geisel"), interviewed Plaintiff regarding the challenges Plaintiff had been having with the student. Am. Compl. [#6] at 9 (Letter of Warning). That same day, Geisel issued the Letter of Warning to Plaintiff, indicating that Plaintiff had been experiencing challenges with the student "for over three months." Id. The Letter of Warning further states that Plaintiff had "admitted to responding to [the student]" and that Plaintiff "felt threatened and used [his briefcase] to push [the student] away . . . to remove [himself] from the situation." Id. In the letter, Geisel wrote that Plaintiff acknowledged that he should not have responded to the student's vulgar comment and that he should have removed himself from the situation earlier. Id.
Furthermore, Geisel directed Plaintiff that, going forward, he was to "not engage negatively, escalate students or respond with inappropriate language toward students." Am. Compl. [#6] at 9 (Letter of Warning). Geisel further told Plaintiff that he would no longer "have any contact with [the student]." Id. Moreover, Geisel told Plaintiff that "if [he] fail[ed] to implement [his] de-escalation techniques or fail[ed] to walk away from an escalated situation in which there is no immediate danger to school occupants, [he would] be subjected to progressive discipline." Id.
As a result of the situation on January 17, 2018, Defendant placed Plaintiff on administrative leave and allegedly told Plaintiff to "stay away from this [student] because she had it out for him." Am. Compl. [#6] ¶ 10. Plaintiff asserts that Defendant did not penalize the student for the January 17th attack. Id.
After returning from his administrative leave, Plaintiff was attacked a second time on February 6, 2018 by the same student. Am. Compl. [#6] ¶ 10. Plaintiff asserts that the student "attacked [him] with her fist and a belt" as Plaintiff was leaving a classroom. Id. Plaintiff further asserts that he "did not engage in violent conduct" and was justified in "defend[ing] himself with defensive blocks and by pushing her away" three times. Id. At some point during the altercation, Plaintiff asserts that he unintentionally kicked the student while she was on the ground. Id.; see Termination Letter [#15-1] at 1.
On July 17, 2018, Defendant sent Plaintiff a Termination Letter [#15-1] to notify Plaintiff that his employment with Defendant was terminated, effective as of the date of the letter, and that he would be considered ineligible for re-employment with the school district. See Am. Compl. [#6] ¶ 14; Termination Letter [#15-1] at 1. Defendant's termination of Plaintiff's employment was predicated on the Letter of Warning dated January 26, 2018—directing Plaintiff to "not engage negatively, escalate students or respond with inappropriate language toward students"—combined with the subsequent physical altercation Plaintiff had with the student on February 6, 2018. Termination Letter [#15-1] at 1 (emphasis in original). Specifically, the Termination Letter [#15-1] states that Plaintiff had "neglected [his] duties, been insubordinate when [he] violated the directives in the [L]etter of [W]arning, and [Defendant] no longer [had] confidence in [Plaintiff's] judgment or professionalism." Id.; see Am. Compl. [#6] ¶ 14. The Termination Letter [#15-1] further states that Plaintiff had until July 20, 2018 to request a Post-Termination Hearing; otherwise, Plaintiff's termination would be final. Termination Letter [#15-1] at 1.
Plaintiff asserts that Defendant created a hostile work environment by "order[ing] Plaintiff back into the classroom with the violent student." Am. Compl. [#6] ¶ 12. According to Plaintiff, complying with Defendant's directive placed him in a hostile situation. Id. ¶ 13. Plaintiff further asserts that Defendant terminated Plaintiff in an attempt to "cover [ ] up" the attacks "by a very violent and gang related student." Id. at 4. As a result, Plaintiff states that he "has suffered immensely," including: "lost earnings," "past and future emotional distress, non-economic pain and suffering[,] phycological [sic] treatment, [and] damages that [P]laintiff alleges arise from [D]efendant's wrongful conduct." Id. ¶ 11.
The Amended Complaint [#6] does not make clear the specifics of Defendant's directive, apart from the Letter of Warning directing Plaintiff to "not engage negatively, escalate students or respond with inappropriate language towards students." Am. Compl. [#6] at 9.
Furthermore, Plaintiff asserts that Defendant was aware, or reasonably should have been aware, that Plaintiff's refusal to comply with Defendant's directive—to "not engage negatively . . . toward students"—was based on Plaintiff's reasonable belief that the directive violated Plaintiff's rights as a worker. Id. ¶ 15.
On January 10, 2020, Plaintiff filed the Amended Complaint [#6] against Defendant. Plaintiff asserts that Defendant violated Plaintiff's rights pursuant to Title VII, the ADEA, and 42 U.S.C. § 1981 in regard to: "1. Claimants with contractual rights[,] 2. The radical identity of the complainant[,] 3. Preferential Treatment[,] 4. Victims of Retaliation[,] 5. Crimes against the elderly[,]" and (6) hostile work environment. See Am. Compl. [#6] ¶ 3, pp. 2, 4. For the purpose of this Motion [#15], the Court construes Plaintiff's claims as the following: (1) Title VII discrimination; (2) Title VII retaliation; (3) Title VII hostile work environment; (4) age discrimination in violation of the ADEA; (5) retaliation in violation of the ADEA; and (6) denial of equal rights under the law pursuant to 42 U.S.C. § 1981. The Motion [#15] seeks dismissal of all the claims pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief may be granted. Motion [#15] at 3.
This characterization of the claims was set forth in Defendant's Motion [#15], apart from the hostile work environment claim. Plaintiff did not contest this characterization of the claims in his Response [#24] other than to make clear that he is also asserting a hostile work environment claim. See Response [#24] at 3.
Defendant's Motion [#15] is inconsistent in its request as to dismissal. Compare Motion [#15] at 3 (requesting dismissal with prejudice) with id. at 12 (requesting dismissal without prejudice). For the purpose of this Motion [#15], the Court will construe the request as a request for dismissal with prejudice.
II. Standard of Review
Fed. R. Civ. P. 12(b)(6) tests "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). To survive a Rule 12(b)(6) motion, "[t]he complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support plaintiff's allegations." Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[P]lausibility 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." Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (internal quotations and citations omitted).
"A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the alleged misconduct." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). However, "[a] pleading that offers 'labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do. Nor does the complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted). That said, "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Khalik, 671 F.3d at 1192.
"The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). As the Tenth Circuit has explained, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the [C]ourt reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in original). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (citation omitted).
III. Analysis
A. The Merits of the Claims
1. Title VII Claims
Title VII prohibits an employer from engaging in certain activities. Among these activities, Title VII forbids an employer from "discharg[ing] any individual . . . because of such individual's race, color, religion, sex, or national origin . . . ," 42 U.S.C. § 2000e-2(a)(1) (discrimination), and also forbids an employer from retaliating against an individual because the individual "has opposed any practice made an unlawful employment practice" by Title VII, 42 U.S.C. § 2000e-3(a) (retaliation). A plaintiff may prove discrimination and retaliation by either direct or circumstantial evidence. See Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008); Anderson v. Acad. Sch. Dist. 20, 122 F. App'x 912, 916 (10th Cir. 2004). Direct evidence demonstrates on its face that employment termination was either discriminatory or retaliatory. Adamson, 514 F.3d at 1145. In contrast, circumstantial evidence permits the fact finder to draw a reasonable inference from facts indirectly related to discrimination or retaliation that discrimination or retaliation has, in fact, occurred. Anderson, 122 F. App'x at 916.
Because Plaintiff does not provide direct evidence of discrimination or retaliation, Plaintiff's Title VII claims are subject to the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination or retaliation. Id. If the plaintiff meets this initial burden, the burden then shifts to the defendant to offer a legitimate, non-discriminatory reason for its employment action. Id. If the defendant offers a legitimate, non-discriminatory reason for its employment action, the plaintiff then bears the ultimate burden of demonstrating that the defendant's proffered reason is pretextual. Id. In the present case, Defendant is only contesting Plaintiff's ability to establish a prima facie case. See generally Motion [#15].
Although "'an employment discrimination plaintiff need not plead a prima facie case of discrimination' to survive a motion to dismiss," Johnston v. Hunter Douglas Window Fashions, Inc., 715 F. App'x 827, 830 (10th Cir. 2017) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002)), he "must allege facts that make such a claim at least plausible." Morman v. Campbell Cty. Mem'l Hosp., 632 F. App'x 927, 933 (10th Cir. 2015). "Thus, to evaluate whether [a] complaint survives a motion to dismiss, absent direct evidence of discrimination, [the Court] examine[s] the first step of the McDonnell Douglas framework: the elements [a plaintiff] would need to establish to prove a prima-facie case." Id. (citing Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012)). In Morman, the Tenth Circuit has held that this framework "is the only way to assess if [a plaintiff's] claim[s] [are], in fact, plausible." Id.
In turn, the Court will address whether Plaintiff has pleaded plausible claims for discrimination, retaliation, and hostile work environment pursuant to Title VII.
a. Title VII Discrimination
To make a prima facie case of discrimination under Title VII, a plaintiff must establish "that (1) [he] belongs to some protected class, (2) [he] was qualified for the position or benefit at issue, (3) [he] suffered an adverse employment action, and (4) [he] was treated less favorably than others." Argo v. Blue Cross & Blue Shield of Kan., Inc., 452 F.3d 1193, 1201 (10th Cir. 2006) (quoting Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1134 (10th Cir. 2004)). "In general, '[t]he critical prima facie inquiry . . . is whether the plaintiff has demonstrated that the adverse employment action [ ] occurred under circumstances which give rise to an inference of unlawful discrimination." Singh v. Cordle, 936 F.3d 1022, 1037 (10th Cir. 2019) (quoting Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000)). As previously stated, although Plaintiff "need not set forth a prima facie case for discrimination," he "must allege facts that make such a claim at least plausible." Morman, 632 F. App'x at 933.
As to the first prong, it is undisputed that Plaintiff belongs to a protected class. See Voltz v. Coca-Cola Enters., Inc., 91 F. App'x 63, 68 (10th Cir. 2004) (noting that African Americans are a protected class). As to the third prong, Plaintiff's termination constitutes an adverse employment action. See Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999). Defendant argues that Plaintiff has failed to plead facts to support the second and fourth prongs. Motion [#15] at 6.
The second prong of the prima facie standard for Title VII discrimination requires Plaintiff to assert facts demonstrating that he was qualified to hold his position as a paraprofessional. See Argo, 452 F.3d at 1201. "[A] plaintiff may make out a prima facie case of discrimination . . . by credible evidence that [he] continued to possess the objective qualifications [he] held when [he] was hired or by [his] own testimony that [his] work was satisfactory, even when disputed by [his] employer, or by evidence that [he] held [his] position for a significant period of time." Smith v. Oklahoma ex rel. Tulsa County Dist. Attorney, 245 F. App'x 807, 812 (10th Cir. 2007) (internal quotation omitted). The Court finds that Plaintiff has adequately alleged facts to support the second prong. Plaintiff alleges that he is "overqualified" for the position because his "last evaluation was 4.8 out of 5." Am. Compl. [#6] at 2; see, e.g., MacDonald v. Eastern Wyoming Mental Health Center, 941 F.2d 1115, 1121 (10th Cir. 1991) (finding that plaintiffs met their prima facie burden of showing satisfactory job performance by describing "the satisfactory nature of their work performance" and not receiving "unfavorable performance reviews until recently"). Moreover, Plaintiff was employed by Defendant for twenty-two years. Am. Compl. [#6] ¶ 8; see, e.g., MacDonald, 941 F.2d at 1121 (plaintiffs employed for four years satisfied the second prong); Valencia v. GEO Group, Inc., No. 05-cv-00296-LTB-PAC, 2005 WL 3416118, at *3 (D. Colo. Dec. 13, 2005) (plaintiff employed "for almost five years" satisfied the second prong).
Although Defendant argues that "Plaintiff's own admissions [allege that] he was not satisfactorily performing his job" because he failed to follow Defendant's directive, the case Defendant cites does not support its argument. See Reply [#28] at 2-3 (citing Rolland v. Primesource Staffing, LLC, 257 F. App'x 68, 71-72 (10th Cir. 2007) to show that a "poor performing employee not fulfilling functions of the job was not qualified"). However, Rolland is distinguishable because the plaintiff was employed for less than one year by a "temporary-to-permanent" employment agency, and there is no evidence that the plaintiff had satisfactory job performance evaluations. 257 F. App'x at 69-70. Moreover, "at the prima facie stage, [Plaintiff] need only produce 'some evidence of good performance' to carry [his] burden." Paup v. Gear Products, Inc., 327 F. App'x 100, 109 (10th Cir. 2009) (quoting Denison v. Swaco Geolograph Co., 941 F.2d 1416, 1420 (10th Cir. 1991)).
As to the fourth prong of the prima facie standard for Title VII discrimination, Plaintiff is required to assert facts to demonstrate that he was treated less favorably than other similarly-situated employees. Argo, 452 F.3d at 1201. The Tenth Circuit has held that "[s]imilarly situated employees are those who deal with the same supervisor and are subject to the same standards governing performance evaluation and discipline." McGowan v. City of Eufala, 472 F.3d 736, 745 (10th Cir. 2006) (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1404 (10th Cir. 1997)).
At no point in his Amended Complaint [#6] has Plaintiff identified another similarly situated employee who was treated more favorably than he was. Although the Court is fully aware of Plaintiff's conclusory allegation that he was treated unfavorably, the applicable "standard is one of relative—and not absolute—disfavor." Brown v. Flextronics Am., LLC, No. 11-cv-01117-LTB-KLM, 2013 WL 3216110, at *5 (D. Colo. Jun. 17, 2013) (requiring identification of other similarly-situated employees to adequately allege that the plaintiff was treated less favorably). Accordingly, absent proper identification of any similarly-situated employees, the Court cannot find that Plaintiff has adequately alleged facts to support the fourth prong of the test.
In fact, Plaintiff does not mention anyone in his Amended Complaint [#6], apart from Defendant, the student, and his teaching evaluator. See generally Am. Compl. [#6]. In his Response [#24], Plaintiff does allege that a Caucasian teacher was "in a physical fight with a student, . . . yet she was not even sent home or [placed on] administrative leave." Response [#24] at 2; id. at 4. However, the Court may not consider extraneous arguments in a responsive brief to circumvent pleading defects when considering a motion to dismiss. See Jojola, 55 F.3d at 494. Even if the Court were to consider this allegation, Plaintiff fails to adequately allege that this other teacher was similarly situated to him.
Moreover, Plaintiff has not adequately alleged that the adverse employment action, i.e., his termination, occurred under circumstances which give rise to an inference of unlawful discrimination. Singh, 936 F.3d at 1037 (citing Kendrick, 220 F.3d at 1227). Plaintiff "does not [allege facts] that support[ ] an inference that [Defendant] terminated him because of his race as opposed to other nondiscriminatory reasons." Truman v. Brannan Sand & Gravel Co., No. 10-cv-00801-PAB-KLM, 2011 WL 5865047, at *5 (D. Colo. Nov. 22, 2011). Beyond his conclusory allegations, Plaintiff pleads no facts in his Amended Complaint [#6] to support a link between any alleged discriminatory conduct and his termination. See id.; Helsper v. Napolitano, No. 11-cv-01804-MSK-BNB, 2012 WL 715555, at *2 (D. Colo. Mar. 5, 2012) (finding that dismissal was appropriate in an employment discrimination case where the plaintiff provided no "dates or descriptions of any of the adverse actions that befell her" and gave no "indication as to why she believes those actions were discriminatory"); see also Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005) (listing circumstances that can give rise to an inference of discriminatory motive). Considering the facts in the light most favorable to Plaintiff, there are simply no facts alleged in the Amended Complaint [#6] from which the Court could find or infer that Defendant's decision to terminate him "took place under circumstances giving rise to an inference of discrimination." See, e.g., Truman, 2011 WL 5865047, at *5.
In his Response [#24], Plaintiff includes a copy of the unemployment hearing officer's decision that found that Plaintiff was "entitled to unemployment insurance benefits, under Colorado law, based on the cause of the separation from employment." Response [#24] at 8 (concluding that Plaintiff was "not at fault for this separation"). However, the Court may not consider extraneous arguments in a responsive brief to circumvent pleading defects when considering a motion to dismiss. See Jojola, 55 F.3d at 494. Even if the Court were to consider the hearing officer's decision, it is "largely unhelpful to [Plaintiff]" because it did not address whether Plaintiff was terminated for discriminatory reasons. See Howell v. N.M. Dep't of Aging & Long Term Servs., 398 F. App'x 355, 358-59 (10th Cir. 2010) (finding EEOC reports to be "inadmissible, unreliable, and largely unhelpful to [the plaintiff]").
Because Plaintiff has not sufficiently alleged facts to support the fourth prong of the prima facie standard for Title VII discrimination, and he has not sufficiently alleged that his termination occurred under circumstances which give rise to an inference of unlawful discrimination, Plaintiff cannot make out a plausible Title VII discrimination claim. Accordingly, the Court recommends that the Motion [#15] be granted as to the Title VII discrimination claim against Defendant.
b. Title VII Retaliation
Furthermore, the Court finds that Plaintiff has failed to adequately allege a plausible claim of retaliation under Title VII. A plaintiff bringing a retaliation claim pursuant to Title VII "must establish that retaliation played a part in the employment decision." Twigg v. Hawker Beechcraft Corp., 659 F.3d 987, 998 (10th Cir. 2011) ("the showing required to establish retaliation is identical under § 1981 and Title VII") (internal citations omitted). To establish a prima facie case of retaliation pursuant to Title VII, a plaintiff must show that "(1) [he] engaged in protected opposition to discrimination; (2) [he] suffered an adverse action that a reasonable employee would have found material; and (3) a causal nexus exists between [his] opposition and the employer's adverse action." Durant v. MillerCoors, LLC, 415 F. App'x 927, 932 (10th Cir. 2011) (quoting Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007)). Akin to his Title VII discrimination claim, Plaintiff "need not set forth a prima facie case," but he "must allege facts that make such a claim at least plausible." Morman, 632 F. App'x at 933. As to the second prong, and as noted in Part III.A.1.a, Plaintiff's termination constitutes an adverse employment action. See Anderson, 181 F.3d at 1178. Defendant argues that Plaintiff has failed to sufficiently allege facts to support the first and third prongs. Motion [#15] at 7-8; Reply [#28] at 7.
Regarding the first prong, "[a]lthough no magic words are required, to qualify as protected opposition the employee must convey to the employer his or her concern that the employer has engaged in a practice made unlawful by [Title VII]." Brown v. Keystone Learning Servs., 803 F. App'x 873, 881 (10th Cir. 2020) (quoting Hinds v. Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008)). "A plaintiff's '[p]rotected opposition can range from filing formal charges to voicing informal complaints to superiors.'" Id. (quoting Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004)).
In his Amended Complaint [#6], Plaintiff has set forth no specific allegations with respect to any engagement in protected opposition. Plaintiff appears to allege that his insubordination constitutes protected opposition because "Defendant was aware[,] or reasonably should have been aware[,] that Plaintiff's [ ]refusal to comply with the [ ] directive[ ] was based on Plaintiff's [r]easonable belief that the [directive] was illegal[,] . . . or violate[d] Plaintiff's rights as a worker." Am. Compl. [#6] ¶ 15. However, Plaintiff's Amended Complaint [#6] merely asserts a retaliation claim without supplying any facts that would have "convey[ed] to [Defendant] . . . that [it had] engaged in a practice made unlawful by [Title VII]." Brown, 803 F. App'x at 882 (quoting Hinds, 523 F.3d at 1203). Nor does Plaintiff allege that he "fil[ed] formal charges" or "voic[ed] informal complaints to superiors" that Defendant's directive—to not engage negatively toward students—was racially discriminatory. Id. (quoting Hertz, 370 F.3d at 1015). Accordingly, the Court cannot find that Plaintiff has adequately alleged facts to plausibly support the first prong of the prima facie standard for Title VII retaliation.
Plaintiff further alleges that he engaged in protected opposition "when [he] scheduled an appointment with the Area Superintendent" on "the day of the [second] attack." Response [#24] at 3. However, Plaintiff still provides no specific facts that he "convey[ed] to [Defendant] . . . that [it had] engaged in a practice made unlawful by [Title VII]." Brown, 803 F. App'x at 882 (quoting Hinds, 523 F.3d at 1203).
As to the third prong, Defendant argues that "even if [Plaintiff] engaged in protected opposition, he [has not pled] facts to support that there is a causal connection between his actions and his termination." Motion [#15] at 8. However, because Plaintiff "fails to [make sufficient allegations of fact to support] that he even [engaged in protected opposition], much less that [Defendant] knew of [it]," Williams v. Rice, 983 F.2d 177, 181 (10th Cir. 1993), the Court need not discuss the causal connection prong.
Because Plaintiff has failed to allege facts to plausibly support that he engaged in protected opposition to discrimination, the Court finds that Plaintiff has failed to allege a plausible Title VII retaliation claim. Accordingly, the Court recommends that the Motion [#15] be granted as to the Title VII retaliation claim against Defendant.
c. Title VII Hostile Work Environment
Defendant argues that Plaintiff's hostile work environment claim should be dismissed because "Plaintiff fails to plead facts to support his hostile work environment claim." Reply [#28] at 4. The Court agrees that Plaintiff has failed to adequately allege facts to support a plausible Title VII hostile work environment claim.
"Under Title VII, it is 'an unlawful employment practice for an employer . . . 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.'" Hernandez v. Valley View Hops. Ass'n, 684 F.3d 950, 957 (10th Cir. 2012) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (internal quotation marks omitted). "This includes an employee's claim of a hostile work environment based on race [ ] discrimination." Id. (quoting Herrera v. Lufkin Indus., Inc., 474 F.3d 675, 680 (10th Cir. 2007)) (internal quotation marks omitted).
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 pervasive to alter the conditions of the victim's employment and create an abusive working environment." Williams v. FedEx Corp. Servs., 849 F.3d 889, 897 (10th Cir. 2017) (quoting Penry v. Fed. Home Loan Bank of Topeka, 155 F.3d 1257, 1261 (10th Cir. 1998)). "General harassment alone is not actionable." Id. (citing Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994)). In evaluating a hostile work environment claim, the Court examines "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." Id. (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). To survive a motion to dismiss, Plaintiff "must allege facts that make [his hostile work environment] claim at least plausible." Morman, 632 F. App'x at 933.
In his Response [#24], Plaintiff reiterates paragraphs 12 and 13 of his Amended Complaint [#6] in support of his hostile work environment claim. Response [#24] at 2. However, paragraphs 12 and 13 refer only to Plaintiff's conclusory allegations of one incident where "[Defendant] subjected [him] to a hostile work environment." Am. Compl. [#6] at 4; see id. ¶¶ 12-13. Paragraph 12 asserts that Defendant created "a very hostile work environment" on January 26, 2018, when "Defendant ordered Plaintiff back into the classroom with the violent student." Id. ¶ 12. Paragraph 13 asserts that, "[c]omplying with Defendant's instruction put Plaintiff in a very hostile situation." Id. ¶ 13.
There are several problems with Plaintiff's contention here. First, a hostile work environment claim under Title VII may not be based on general physical, mental or emotional hostility experienced by a worker while on the job. The linchpin of a proper hostile work environment claim is that the hostility is motivated by race, religion, or other protected status. Brown v. Laferry's LP Gas Co., 708 F. App'x 518, 522 (10th Cir. 2017) (finding that "the conduct that allegedly created [the hostile work] environment must be racial or motivated by racial animus"); Faragalla v. Douglas County Sch. Dist., 411 F. App'x 140, 152 (10th Cir. 2011) (addressing a hostile work environment claim and stating "the harassment must be based on the plaintiff's protected class or stem from discriminatory animus toward her protected class"). The Amended Complaint is absolutely devoid of any such assertion. Moreover, establishment of a hostile work environment generally requires either a single very serious discriminatory event or a series of events that demonstrate discriminatory animus. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (holding that "isolated incidents (unless extremely serious) will not amount to discriminatory changes in the 'terms and conditions of employment'"); Chavez v. New Mexico, 397 F.3d 826, 832 (10th Cir. 2005) (holding that a racially hostile work environment requires "a steady barrage of opprobrious racial comments" and that two disparaging racial comments did not meet this standard). Because Plaintiff has only directed the Court's attention to one specific incident in his Amended Complaint [#6] which lacks any factual connection to putative discrimination, the Court cannot find that he has presented a plausible hostile work environment claim showing that his "workplace [was] permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment." Williams, 849 F.3d at 897. Thus, the Court finds that Plaintiff has failed to meet the minimum pleading threshold to support a plausible Title VII claim of hostile work environment.
Moreover, to the extent Plaintiff is claiming a hostile work environment based on age under the ADEA, it fails for the same reason. See Howell v. New Mexico Dep't of Aging & Long Term Services, Inc., 398 F. App'x 355, 360 (10th Cir. 2010) (requiring that discriminatory animus be shown in such a claim). Also, as the Court has found that dismissal is warranted on the hostile work environment claims based on Plaintiff's failure to state a plausible claim, it need not consider the affirmative defense asserted for the first time in the Reply [#28] based on Plaintiff's "failure to follow [Defendant's] reporting procedures." Reply [#28] at 6; see also Cahill v. Am. Family Mut. Ins. Co., 610 F.3d 1235, 1239 (10th Cir. 2010) ("arguments first raised in a reply brief come too late").
Accordingly, the Court recommends that the Motion [#15] be granted as to the Title VII hostile work environment claim against Defendant.
2. The ADEA Claims
The ADEA prohibits employers from discriminating against employees on the basis of age. 29 U.S.C. § 623. Specifically, the Act states that "prohibitions in this chapter shall be limited to individuals who are at least 40 years of age." 29 U.S.C. § 631. Under the ADEA, it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise 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). In turn, the Court will address whether Plaintiff has alleged facts to support plausible claims for discrimination and retaliation pursuant to the ADEA.
a. ADEA Discrimination
Plaintiff also alleges that he was terminated, in part, because of his age. Am. Compl. [#6] at 2. To prove a prima facie case of age discrimination, a plaintiff must show that he was: "(1) within the protected age group; (2) doing satisfactory work (qualified for the position); (3) discharged (or adversely affected by defendant's employment decision); and (4) replaced by a younger person." Jones v. Unisys Corp., 54 F.3d 624, 630 (10th Cir. 1995) (stating the prima facie standard in the context of a motion for summary judgment). The fourth prong "may also be shown by circumstantial evidence that a plaintiff was treated less favorably than younger employees." Id. (citing Rea v. Martin Marietta Corp., 29 F.3d 1450, 1454 (10th Cir. 1994)). Moreover, "because a plaintiff is not always replaced with another employee, . . . a plaintiff may demonstrate the fourth [prong] by producing 'evidence, circumstantial or direct, from which a factfinder might reasonably conclude that the employer intended to discriminate in reaching the decision at issue.'" Id. (quoting Branson v. Price River Coal Co., 853 F.2d 768, 771 (10th Cir. 1988)). Akin to his Title VII claims, to survive a motion to dismiss, Plaintiff "need not set forth a prima facie case." Morman, 632 F. App'x at 933. However, Plaintiff "must allege facts that make [his ADEA discrimination] claim at least plausible." Id.
Ultimately, in order to set forth a plausible ADEA discrimination claim, Plaintiff must allege facts to sufficiently state "that age was the 'but-for' cause of the challenged employer decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 178 (2009); Backus v. Univ. of Colo., No. 15-cv-01340-REB-NYW, 2015 WL 10490565, at *6 (D. Colo. Dec. 14, 2015) (addressing an ADEA discrimination claim in the context of a motion to dismiss and stating that "[a]n employer may not be held liable under the ADEA unless [the plaintiff] establishes that age is the factor that made the difference in the employer's action.").
With respect to the first prong, Plaintiff is within the protected age group because it is undisputed that Plaintiff was "over sixty-two years of age" when the events described in the Amended Complaint [#6] occurred. See Am. Compl. [#6] at 2; Laul v. Los Alamos Nat'l Labs., 714 F. App'x 832, 836 (10th Cir. 2017) (noting that individuals 40 years of age or older are a protected class). With respect to the third prong, as discussed above in Part III.A.1.a, Plaintiff's termination constitutes an adverse employment action. See Anderson, 181 F.3d at 1178. Similar to Plaintiff's Title VII discrimination claim, Defendant argues here that Plaintiff has failed to sufficiently allege facts to support the second and fourth prongs of his ADEA discrimination claim. Motion [#15] at 5-6.
With respect to the second prong, the Court has already found that Plaintiff has made sufficient allegations of fact to support that he was doing satisfactory work as a paraprofessional. See Part III.A.1.a, supra (Plaintiff's last performance evaluation was 4.8 out of 5 and he was employed by Defendant for twenty-two years). Thus, Plaintiff has adequately pled facts supporting the second prong of his prima facie case of ADEA discrimination.
With respect to the fourth prong—i.e., whether Plaintiff was replaced by a younger person, treated less favorably than younger employees, or that Defendant intended to discriminate in reaching the decision to terminate him—Plaintiff does not provide any specific allegations regarding these age-related factors in his Amended Complaint [#6]. Defendant argues that, because Plaintiff merely asserts that he is over the age of sixty, without "assert[ing] that his [ ] age had anything to do with his termination," Plaintiff's ADEA claim must be dismissed. Motion [#15] at 6.
The Court agrees with Defendant that Plaintiff has not alleged facts to support the fourth prong of his ADEA discrimination claim. Plaintiff does not aver in his Amended Complaint [#6] that he was replaced by a younger person, nor does he assert that he was treated less favorably than younger employees. See, e.g., Jackson v. City & County of Denver, 628 F. Supp. 2d 1275, 1302 (D. Colo. 2008). Furthermore, the conclusory allegations in Plaintiff's Amended Complaint [#6], without more, fail to sufficiently state that Defendant intended to discriminate in reaching its decision to terminate him. See, e.g., Kosak v. Catholic Health Initiatives of Colo., 400 F. App'x 363, 367 (10th Cir. 2010) (finding that the facts alleged by the plaintiff did "not raise an inference that she was discriminated against because of her age"). Therefore, Plaintiff fails to sufficiently plead facts to support the fourth prong of his prima facie case of ADEA discrimination.
In his Response [#24], Plaintiff alleges that a co-worker made "ageist remarks" to him and that "when this behavior was brought to the Administration's attention[,] they would say 'he's just playing.'" Response [#24] at 2. However, Plaintiff fails to allege these statements in his Amended Complaint [#6]. Moreover, Plaintiff does not recite the statements, state the age of the co-worker who had made them, or explain how those statements relate to the decision to terminate his employment. The Tenth Circuit has made clear that "stray remarks, and isolated or ambiguous comments are too abstract . . . to support a finding of age discrimination." Kirkpatrick v. Pfizer, Inc., 391 F. App'x 712, 720 (10th Cir. 2010) (quoting Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 531 (10th Cir. 1994)).
Moreover, Plaintiff cannot prevail on his ADEA discrimination claim because he fails to provide any allegations from which the Court could find or infer that his age was the "but-for" cause of his termination. Gross, 557 U.S. at 178; Backus, 2015 WL 10490565, at *6.
Because Plaintiff has not adequately alleged facts to support the fourth prong of the prima facie standard for ADEA discrimination, nor has he sufficiently alleged facts to support "but-for" causation, Plaintiff has not pled a plausible claim of ADEA discrimination. Accordingly, the Court recommends that the Motion [#15] be granted as to the ADEA discrimination claim against Defendant.
b. ADEA Retaliation
It appears based on the allegations in the Amended Complaint [#6] that Plaintiff also intends to assert a retaliation claim pursuant to the ADEA. See Am. Compl. [#6] at 4 (asserting that "[Defendant] violated Plaintiff's rights under . . . ADEA laws," and that he is a "[v]ictim of [r]etaliation"). Akin to a retaliation claim under Title VII, "[a] prima facie case of retaliation [under the ADEA] requires the plaintiff to show that (1) he [ ] 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." Hinds, 523 F.3d at 1202 (citing Montes, 497 F.3d at 1176). As previously stated, Plaintiff need only "allege facts that make such a claim at least plausible." Morman, 632 F. App'x at 933. He "need not set forth a prima facie case." Id. As to the second prong, as previously discussed, it is undisputed that Plaintiff's termination is considered to be materially adverse. See Anderson, 181 F.3d at 1178. Similar to Plaintiff's Title VII retaliation claim, Defendant argues here that Plaintiff has failed to adequately allege facts to support the first and third prongs of his ADEA retaliation claim. Motion [#15] at 7-8.
With respect to the first prong, Defendant argues that, because Plaintiff's Amended Complaint [#6] does not provide any facts to show that he engaged in protected opposition to age discrimination, his ADEA retaliation claim must fail. Motion [#15] at 7-8. Construing the Amended Complaint [#6] liberally, the Court cannot find evidence that Plaintiff engaged in protected activity. See generally Am. Compl. [#6]. Plaintiff asserts new facts in his Response [#24], not alleged in the Amended Complaint [#6], that allude to him engaging in protected opposition to age discrimination. Response [#24] at 3. Specifically, Plaintiff asserts that he reported "ageist remarks" that were made by another employee to Defendant, "yet nothing was done." Id. Even if the Court considers these newly asserted facts, Plaintiff does not allege who he made the report to or whether the individuals involved in his termination knew about the alleged report. See Peterson v. Utah Dep't of Corrections, 301 F.3d 1182, 1188-89 (10th Cir. 2002) ("An employer's action against an employee cannot be because of that employee's protected opposition unless the employer knows the employee has engaged in protected opposition.") (citing Williams, 983 F.2d at 181 ("plaintiff must show that the individual who took adverse action against him knew of the employee's protected activity")). Because the Court cannot find that Plaintiff has adequately alleged facts to support that he engaged in protected activity, there could ultimately be no finding that Defendant's decision to terminate him was motivated by ADEA-prohibited retaliation. See, e.g., Maxey v. Rest. Concepts II, LLC, 654 F. Supp. 2d 1284, 1297 (D. Colo. 2009).
With respect to the third prong, i.e., establishing the "requisite causal connection between his protected opposition and termination, [Plaintiff] must show that [Defendant] was motivated to terminate his employment by a desire to retaliate for his protected activity." Hinds, 523 F.3d at 1203 (citing Wells v. Colo. Dep't of Transp., 325 F.3d 1205, 1218 (10th Cir. 2003)). As with the first prong, in order to satisfy the causal connection prong, "[P]laintiff must show that the individual who took adverse action against [him] knew of the employee's protected activity." Id. (citing Montes, 497 F.3d at 1176). Again, Plaintiff has not asserted any facts which would support this showing.
As Plaintiff failed to sufficiently allege facts to support the first and third prongs, the Court finds that Plaintiff has failed to state a plausible claim for retaliation under the ADEA. Accordingly, the Court recommends that the Motion [#15] be granted as to the ADEA retaliation claim against Defendant.
3. 42 U.S.C. § 1981 Claim
Finally, Plaintiff further asserts a claim pursuant to 42 U.S.C. § 1981, alleging that he was denied equal rights under the law. See Am. Compl. [#6] ¶ 3. The specific allegations underlying this claim are unclear. Plaintiff appears to allege that Defendant discriminated and retaliated against him based on his race by terminating his employment. See id. at 2, 4. Defendant argues that Plaintiff's § 1981 claim must be dismissed because he "fails to plead municipal liability" and he "fails to plead facts to support the elements of his § 1981 claim." Motion [#15] at 9, 10. Furthermore, Defendant argues that Plaintiff "fails to allege any facts to support the conclusion that race played any role in [Defendant's] termination decision." Id. at 11.
42 U.S.C. § 1981 protects employees from racial discrimination both in entering into an employment contract, and in enjoying the benefits, privileges, terms, and conditions of employment. See Exum, 389 F.3d at 1134 (citing Harris v. Allstate Ins. Co., 300 F.3d 1183, 1186-87 (10th Cir. 2002)). In order to establish a prima facie case of discrimination under section 1981, Plaintiff either must assert direct evidence of discrimination or the Court must apply the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (the standards for a claim asserted pursuant to 42 U.S.C. § 1981 are the same as for a Title VII claim). Under the burden-shifting framework of McDonnell Douglas, "the plaintiff must first establish a prima facie case of discrimination or retaliation." Id. at 1195. Although Plaintiff "need not set forth a prima facie case" in the context of a motion to dismiss, he "must allege facts that make such a claim at least plausible." Morman, 632 F. App'x at 933.
As discussed above, Plaintiff fails to allege facts that make his discrimination and retaliation claims plausible. Plaintiff does not allege that anyone treated him differently due to his race or that he was treated differently from similarly situated employees. See, e.g., Olguin v. Lucero, 87 F.3d 401, 406 (10th Cir. 1996) (affirming the district court's finding that § 1981 was inapplicable to the case because the plaintiffs "wholly failed to give any indication that the actions of which they complain[ed] were racially motivated"). Nor does Plaintiff allege that he engaged in protected opposition to discrimination. See, e.g., Muller v. Islands at Rio Rancho Homeowners Ass'n, 564 F. App'x 411, 414 (10th Cir. 2014) (affirming the district court's dismissal of the plaintiff's § 1981 claim because the plaintiff "failed to sufficiently allege facts demonstrating that he engaged in protected activity"). Therefore, Plaintiff has not adequately alleged facts to support a plausible claim for relief pursuant to 42 U.S.C. § 1981.
Because Plaintiff fails to sufficiently plead a plausible claim for relief pursuant to 42 U.S.C. § 1981, the Court need not resolve whether Plaintiff has sufficiently pled municipal liability. See Mitchell v. City & County of Denver, 112 F. App'x 662, 671 (10th Cir. 2004) (analyzing whether the plaintiff established the prima facie case for a § 1981 claim before analyzing whether the plaintiff established municipal liability). --------
Accordingly, the Court recommends that the Motion [#15] be granted as to the 42 U.S.C. § 1981 claim against Defendant.
B. Dismissal or Leave to Amend
In light of the recommendation to grant the Motion [#15], the Court next addresses whether the case should be dismissed or whether Plaintiff should be granted leave to amend the complaint. "Given the heightened concerns that govern pro se litigation, 'ordinarily the dismissal of a pro se claim should be without prejudice.'" Gabriel v. Emergency Medical Specialists, P.C., No. 16-cv-00051-RBJ-CBS, 2016 WL 8310097, at *8 n.13 (D. Colo. Nov. 1, 2016) (citation omitted). Nonetheless, dismissal with prejudice is 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." Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001). Thus, the Court considers whether Plaintiff should be given an opportunity to amend the complaint.
While Plaintiff has not requested leave to amend, the Court notes that leave to amend a complaint should be granted by the court "freely . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). While Plaintiff filed an Amended Complaint [#6], he was not advised of the "pleading's deficiencies" until the filing of the Motion to Dismiss [#15] and this Recommendation. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) ("[O]rdinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice, and a careful judge will explain the pleading's deficiencies so that a [plaintiff] with a meritorious claim can then submit an adequate complaint.") (citations omitted). Moreover, the Court cannot find at this juncture that "it would be futile to give [Plaintiff] an opportunity to amend[,]" Oxendine, 241 F.3d at 1275, particularly given facts that Plaintiff asserted in his Response [#24] to the Motion [#15].
Based on the above authority, and given that Plaintiff is proceeding without an attorney, the Court recommends that Plaintiff's claims be dismissed without prejudice and that he be granted leave to amend through the filing of a Second Amended Complaint.
IV. Conclusion
Based on the foregoing reasons,
IT IS HEREBY RECOMMENDED that the Motion [#15] be GRANTED, and that Plaintiff's claims be DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER RECOMMENDED that Plaintiff be GRANTED LEAVE TO AMEND to file a Second Amended Complaint.
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 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: July 7, 2020
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge