Kerr v. Cryogenic Industrial Solutions (CIS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 24-cv-03037-CNS-TPO
HAQIKAH KERR,
Plaintiff,
v.
CRYOGENIC INDUSTRIAL SOLUTIONS,
Defendant.
______________________________________________________________________________
REPORT AND RECOMMENDATION
______________________________________________________________________________
Timothy P. O’Hara, United States Magistrate Judge.
Before this Court is Defendant’s Motion to Dismiss Plaintiff’s Fourth Complaint [ECF 53].
U.S. District Judge Charlotte N. Sweeney referred the Motion to this Court [ECF 54], and it is now
fully briefed.1 The Court finds that oral argument will not materially assist in issuing this
Recommendation. After reviewing the briefing, the record, and the relevant case law, the Court
recommends that Defendant’s Motion be granted and Plaintiff’s claims be dismissed.
Also before this Court is Plaintiff’s Motion for Leave to File Fifth Amended Complaint
[ECF 122], which also is fully briefed. This Court recommends that Motion be denied.
1 The briefing consists of the Motion, Plaintiff’s Response [ECF 55], Defendant’s Reply [ECF 56],
and Plaintiff’s Motion for Leave to File Sur-Reply Out of Time in Opposition to Defendant’s
Motion to Dismiss [ECF 59]. The Court also reviewed Plaintiff’s Motion for Leave to File Sur-
Reply Out of Time in Opposition to Defendant’s Motion to Dismiss [ECF 59] and Plaintiff’s
Motion to Supplement Opposition to Defendant’s Motion to Dismiss with Supplemental Brief on
Disparate Treatment and Pretext [ECF 124]. As discussed below, the Court denies the latter two
Motions.
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 1 of 16

2
FACTUAL BACKGROUND2
Defendant employed Plaintiff as an over-the-road (OTR) transport driver from August 16,
2023, to November 11, 2023, a period of less than three months. ECF 48 ¶ 2. During that time,
Plaintiff had perfect attendance and passed an on-road state inspection. Id. ¶ 6.
On September 21, 2023, Plaintiff’s home “suffered water damage.” ECF 8 ¶ 8. Plaintiff
requested time off, and Defendant allowed Plaintiff 48 hours3 to deal with the flooding, but when
she requested additional time, Defendant denied the request. Id. After returning to work, Plaintiff
requested a route closer to home, but Defendant also denied this request. Id. ¶ 9.
On November 11, 2023, Defendant terminated Plaintiff for “time theft.” Id. ¶ 11. Plaintiff
explains that Defendant’s determination of theft was incorrect: Defendant’s own customer
requested that she remain on “standby,” but when she requested standby pay from Defendant, the
accusation of “time theft” arose. Id. ¶ 10. After her employment, Plaintiff alleges that Defendant
discouraged another company from hiring her. Id. ¶ 12.
PROCEDURAL BACKGROUND
On October 30, 2024, Plaintiff initiated the present lawsuit. ECF 1. On October 31, 2024,
U.S. Magistrate Judge Richard T. Gurley ordered Plaintiff to cure deficiencies in her pleading.
ECF 4. Plaintiff went on to amend the Complaint three times in one month. ECFs 7 (First Amended
2 The Court takes the facts listed in this section from the well-pled facts found in Plaintiff’s Fourth
Amended Complaint (FAC) and presumes they are true for the purposes of this Recommendation.
See Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citing Moore v. Guthrie, 438
F.3d 1036, 1039 (10th Cir. 2006)); see also Boulter v. Noble Energy, 521 F. Supp. 3d 1077, 1082
(D. Colo. 2021) (citing Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)).
3 Based on the dates provided in Plaintiff’s FAC, she was allowed 72 hours of leave. ECF 48
(noting time off between September 27, 2023 and September 29, 2023, returning to work on
September 30, 2023).
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 2 of 16

3
Complaint – FAC); 9 (Second Amended Complaint – SAC); and 10 (Third Amended Complaint
– TAC).
On March 13, 2025, Defendant moved to dismiss Plaintiff’s TAC. ECF 32. Shortly
thereafter, on March 24, 2025, Plaintiff moved to amend her complaint. ECF 39.
On March 25, 2025, the Court held a Scheduling Conference. ECF 45. At that time, the
Court granted Plaintiff’s Motion for Leave to File Fifth [sic] Amended Complaint [ECF 39], giving
Plaintiff until April 1, 2025, to do so. Id. The Court found it was premature to hold the Scheduling
Conference. Id.
On April 1, 2025, Plaintiff filed her Fourth Amended Complaint (FoAC), the current
operative pleading. ECF 48. In the FoAC, Plaintiff names only Defendant and brings two claims:
1) Race Discrimination in violation of 42 U.S.C. § 1981 and 2) Sex Discrimination in violation of
Title VII of the Civil Rights Act of 1964. Id. at 4-5. Plaintiff referenced six exhibits, id. at 7, but
failed to attach any of them to the FoAC.4
On April 25, 2025, Defendant moved to dismiss the FoAC, raising two primary bases for
dismissal. First, Plaintiff’s Title VII claim was untimely filed and in violation of 42 U.S.C. §
2000e-5(f)(1). ECF 53 at 6-8. Second, Plaintiff fails to state a claim under either Title VII or
Section 1981. Id. at 8-13.
In her Response, Plaintiff concedes that the Title VII claim was filed after the 90-day
statutory limit but argues that equitable tolling should preserve the claim. ECF 55 at 1-2. Plaintiff
also argues that she has stated a prima facie claim of discrimination under Section 1981. Id. at 3-
4.
4 Plaintiff did file several of the documents at ECF 51, including the Determination and Notice of
Rights from the EEOC and a letter written by Mr. Patrick Drayton describing the events off
October 27, 2023, that appears to have been submitted as part of the EEOC proceeding.
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 3 of 16

4
LEGAL STANDARDS
I. 	Pro Se Plaintiff’s Complaint
A pro se plaintiff’s “pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991)). “Th[e] court, however, will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on the plaintiff’s behalf.” Smith v. United States,
561 F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173-74
(10th Cir. 1997)). The Tenth Circuit has interpreted this rule to mean that if a court “can reasonably
read the pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so
despite the plaintiff’s failure to cite proper legal authority, [their] confusion of various legal
theories, [their] poor syntax and sentence construction, or [their] unfamiliarity with pleading
requirements.” Diversey v. Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935
F.2d at 1110). However, it is not “the proper function of the district court to assume the role of
advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110). Nor is
it the Court’s obligation to do litigants’ legal research for them. We Alliance Secured Income Fund,
LLC v. Swan, No. 23-cv-02992-SKC-MEH, 2024 WL 2863805, at *2 (D. Colo. Mar. 25, 2024).
II. 	Fed. R. Civ. P. 12(b)(6) Motion to Dismiss
Under Rule 12(b)(6), a court may dismiss a claim for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) motions “test the sufficiency of the
allegations within the four corners of the complaint after taking those allegations as true.” Mobley
v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994) (citing Williams v. Meese, 926 F.2d 994, 997
(10th Cir. 1991)). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 4 of 16

5
evidence that the parties might present at trial, but to assess whether the plaintiff’s complaint alone
is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc.,
336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).
“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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff’s
claims are plausible when the well-pleaded facts allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin
to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted
unlawfully.” Id. When considering a 12(b)(6) motion, a court must “presume[] all of plaintiff’s
factual allegations are true and construe[] them in the light most favorable to the plaintiff.” Hall,
935 F.2d at 1109.
However, the court need not accept as true mere legal conclusions asserted with
“threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). The court “must 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). If a plaintiff’s factual allegations have not “nudged their claims across
the line from conceivable to plausible, their complaint must be dismissed.” Twombly, 550 U.S. at
570. A pro se plaintiff “whose factual allegations are close to stating a claim but are missing some
important element that may not have occurred to him, should be allowed to amend [her] complaint.
Hall, 935 F.2d at 1110 (citing Reynoldson v. Shillinger, 907 F.2d 124, 126-27 (10th Cir. 1990)).
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 5 of 16

6
ANALYSIS
Discrimination – Title VII
To pursue a claim of discrimination under Title VII, a party first must file a charge alleging
an unlawful employment practice with the Equal Employment Opportunity Commission (EEOC).
See 42 U.S.C. § 2000e-5(b). Once the EEOC receives the charge, it retains “exclusive jurisdiction
over the claim for 180 days.” Tabor v. Great Western Buildings, No. 24-cv-01774-KAS, 2025 WL
2781263, at *2 (D. Colo. Sept. 29, 2025) (citing EEOC v. Waffle House, Inc., 534 U.S. 279, 288
(2002)). Upon completion of its investigation, if the EEOC decides not to pursue a claim, it will
issue a “right to sue” notice, providing the individual with an advisement of her rights regarding
pursuing a claim in federal court. Id. (citing 29 C.F.R. § 1601.18(b); 42 U.S.C. § 2000e-5(f)(1)).
Following the issuance of the “right to sue” notice, Title VII requires that a civil action be
“brought against the respondent named in the charge within 90 days.” 42 U.S.C. § 2000e-5(f)(1);
see also Biester v. Midwest Health Serv., Inc., 77 F.3d 1264, 1267 (10th Cir. 1996) (internal
quotation marks omitted). “The 90-day period for filing suit generally commences on the date that
the complainant actually receives the EEOC right to sue notice.” Id. (citing Williams v. S. Union
Gas. Co., 529 F.2d 483, 487 (10th Cir. 1976), cert. denied, 429 U.S. 959 (1976)). Like a statute of
limitations, the 90-day period is not jurisdictional and “is subject to waiver, estoppel, and equitable
tolling.” Id. (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982)).
However, “[c]ourts have narrowly construed equitable exceptions to the time limitations
set out in Title VII.” Biester, 77 F.3d at 1268 (citing Baldwin Cty. Welcome Ctr. v. Brown, 466
U.S. 147, 152 (1984)). The circumstances of the case must “rise to the level of active deception
which might invoke the powers of equity to toll the limitations period.” Id. (quoting Cottrell v.
Newspaper Agency Corp., 590 F.2d 836, 838-39 (10th Cir. 1979)). This doctrine is “to be applied
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 6 of 16

7
sparingly.” Benton v. Town of South Fork and Police Dept., 553 F. App’x 772, 779-80 (10th Cir.
2014) (unpublished) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).
Here, Plaintiff admits that she received the Right to Sue letter on July 31, 2024. ECF 48 at
5. On October 30, 2024, Plaintiff filed her Complaint, alleging, in part, a violation of Title VII.
ECF 1. The Complaint was filed 91 days after she received the Right to Sue Letter.5 Id. Plaintiff
does not dispute that she filed her Complaint after the deadline prescribed by statute. Plaintiff’s
only argument is that the 90-day period should be equitably tolled. ECF 55 at 1-2. Plaintiff cites
several cases in support. Id. at 2.
As highlighted by Defendant, though, ECF 56 at 2, the cases cited by Plaintiff do not
support her position. For example, while the Tenth Circuit acknowledged in Biester that equitable
tolling is an option, it noted that equitable tolling only applies “if the circumstances of the case
rise to the level of active deception which might invoke the powers of equity to toll the limitations
period.” 77 F.3d at 1267 (quoting Biester v. Midwest Health Service, Inc., No. 94-2034-GTV, 1994
WL 541827) (internal quotation marks omitted)). Plaintiff alleges no such deception here.
Plaintiff instead argues that a series of difficult personal events justifies the equitable
tolling of the 90-day period. ECF 55 at 2. She describes financial distress and childcare issues, as
well as property damage and illnesses that resulted from water damage to her home. Id. She also
notes a lack of prejudice to Defendant. Id.
5 According to Fed. R. Civ. P. 6(a), for computing time periods stated in days, courts are to
“exclude the day of the event that triggers the period,” count all days in between, and “include the
last day of the period,” assuming that the last day is not a Saturday, Sunday, or legal holiday. In
conducting its calculation, this Court excludes July 31, 2024, the day of the event that triggered
the calculation period, and includes October 29, 2024, a non-holiday Tuesday. As a result, October
30, 2024, the day Plaintiff filed her Complaint, was the 91st day.
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 7 of 16

8
While this Court is sympathetic to Plaintiff’s situation, the law is clear that this Court may
not simply excuse the 90-day requirement. See Jarrett v. US Sprint Communications Co., 22 F.3d
256, 260 (10th Cir. 1994) (quoting Baldwin County, 466 U.S. at 152) (“Procedural requirements
established by Congress for gaining access to the federal courts are not to be disregarded by courts
out of a vague sympathy for particular litigants.”); Gordon v. Paycom Payroll, LLC, No. CIV-25-
00669-JD, 2025 WL 3111578, at *3 (W.D. Okla. Nov. 6, 2025) (same). And consistently, courts
have been unwilling to expand the scope of equitable tolling outside the context of active deception
or plaintiff’s mental incompetence. See Biester, 77 F.3d at 1268 (plaintiff’s mental illness deemed
insufficient to trigger equitable tolling); Gordon, 2025 WL 3111578, at *36 (equitable tolling not
allowed due to “a family emergency six days before receiving the right-to-sue letter” and the death
of a friend that provided legal advice); Montoya v. Chao, 296 F.3d 952, 958 (10th Cir. 2002)
(plaintiff’s limited education and understanding of the law deemed insufficient to justify equitable
tolling); Brackens v. Domino’s Pizza LLC, No. 07-cv-01953-REB-MJW, 2008 WL 54922, at *5
(D. Colo. Jan. 3, 2008) (plaintiff’s poor health not sufficient to justify equitable tolling).
As a result, due to Plaintiff’s Title VII claim being filed outside of the 90-day window, the
claim is time-barred. This Court recommends that the district court dismiss the claim with
prejudice because amendment would be futile. See Nelson v. Mayorkas, No. 23-cv-00100-NYW-
SBP, 2024 WL 1090301, at **7-8 (D. Colo. Mar. 4, 2024) (overruling plaintiff’s objections to
Magistrate Judge’s recommendation and dismissing Title VII claims filed one day late with
prejudice); Slayton v. Bayfield Sch. Dist., No. 24-cv-00930-NYW-KAS, 2024 WL 4979422, at *5
(D. Colo. Dec. 4, 2024) (recommending dismissal with prejudice based on failure to file within 90
6 In Gordon, the plaintiff filed her complaint one day after the 90-day deadline as well. 2025 WL
3111578, at *2.
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 8 of 16

9
days of receiving EEOC right to sue letter), report and recommendation adopted, No. 24-cv-
00930-NYW-KAS, 2025 WL 830472 (D. Colo. Mar. 17, 2025).
Discrimination - 42 U.S.C. § 1981
To prove a claim of race discrimination under Section 1981, a plaintiff must demonstrate:
“(1) that the plaintiff is a member of a protected class; (2) that the defendant had the intent to
discriminate on the basis of race; and (3) that the discrimination interfered with a protected activity
as defined in §1981.” Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1101-02 (10th Cir.
2001) (citing Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1532 (10th Cir. 1995)).
Section 1981 covers four areas of protected interests: “(1) the right to make and enforce contracts;
(2) the right to sue, be parties, and give evidence; (3) the right to the full and equal benefit of the
laws; and (4) the right to be subjected to like pains and punishments.” Phelps v. Wichita Eagle-
Beacon, 886 F.2d 1262, 1267 (10th Cir. 1989)).
“A plaintiff alleging discrimination . . . may prove intentional discrimination through either
direct evidence of discrimination (e.g., oral or written statements on the part of a defendant
showing a discriminatory motivation) or indirect (i.e., circumstantial) evidence of discrimination.”
Kendrick v. Penske Transp. Services, Inc., 220 F.3d 1220, 1225 (10th Cir. 2000) (citing Shorter v.
ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999); Elmore v. Capstan, Inc., 58 F.3d 525,
529 (10th Cir. 1995)). To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a plaintiff
“need not plead facts sufficient to establish a prima facie case,” but “general assertions of
discrimination . . . without any details whatsoever of events leading up to [the adverse employment
action], are insufficient . . .” Hunt v. Central Consol. School Dist., 951 F. Supp. 2d 1136, 1174-75
(D. N.M. June 12, 2013) (quoting Khalik, 671 F.3d at 1192).
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 9 of 16

10
Plaintiff has not put forth sufficient facts to support a plausible claim of intentional
discrimination under Section 1981. First, Plaintiff makes several conclusory statements in the
FoAC7 that this Court disregards. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
(“we will disregard conclusory statements and look only to whether the remaining, factual
allegations plausibly suggest the defendant is liable.”); see also Bekkem v. Wilkie, 915 F.3d 1258,
1275 (10th Cir. 2019) (“it is insufficient for a plaintiff to allege, for instance, that she did not
receive an employment benefit that ‘similarly situated’ employees received. A plaintiff’s assertion
that she is ‘similarly situated’ to other employees is ‘just a legal conclusion—and a legal
conclusion is never enough.’”) (quoting Hwang v. Kan. State Univ., 753 F.3d 1159, 1164 (10th
Cir. 2014)). After striking those statements, the Court is left with the following facts from
Plaintiff’s FoAC:
1) 	Plaintiff was hired on August 16, 2023 (ECF 48 ¶ 6);
2) 	Shortly after starting to work for Defendant, Plaintiff endured hardship based on a
flood in her home (id. ¶ 8);
3) 	Plaintiff requested additional time off and a change of route to be closer to home,
which was denied (id. ¶¶ 8-9);
4) 	Defendant falsely accused Plaintiff of wage theft (id. ¶¶ 10-11);
5) 	Defendant terminated Plaintiff’s employment (id. ¶ 11); and
6) 	Defendant discouraged another company from hiring Plaintiff after her
employment was terminated (id. ¶ 12).
7 For example, Plaintiff alleges that her need for time off due to a family emergency was “a need
comparable to leave granted white male drivers.” ECF 48 ¶ 8. She also alleges she requested a
route closer to her home to be near to her family, “a flexibility white male drivers enjoyed.” Id. ¶
9. Finally, she alleges that when she was fired for wage theft of $233, this was “a pretext not
applied to white male drivers.” Id. ¶ 11. This Court finds these statements to be conclusory.
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 10 of 16

11
Even taking these facts to be true and viewing them in a light most favorable to Plaintiff, these
facts do not plausibly allege discrimination based on race.8 Plaintiff alleges no facts that would
link her race to the actions taken by her employer in terminating her. See Muathe v. Hite, No. 17-
2373, 2018 WL 2416683, at *3 (D. Kan. May 29, 2018) (failure to allege that defendants’ actions
were racially motivated supports dismissal of § 1981 claim). “[A] plaintiff should have—and must
plead—at least some relevant information to make the claims plausible on their face.” Bekkem,
915 F.3d at 1275. “[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader
is entitled to relief.” Equal Employment Opportunity Commission v. JBS USA, LLC, 481 F.Supp.
3d 1204, 1211 (D. Colo. Aug. 25, 2020) (quoting Iqbal, 556 U.S. at 679).
Here, Plaintiff has not sufficiently pleaded facts that, if proven true, could establish intent
to discriminate by her employer. As a result, this Court recommends that the district court grant
Defendant’s Motion to Dismiss.
Pro Se Plaintiff’s Motion for Leave to File Fifth Amended Complaint [ECF 122]
On January 15, 2026, Plaintiff filed her Motion for Leave to Amend to File Fifth Amended
Complaint [ECF 122]. Plaintiff also filed a proposed Fifth Amended Complaint [ECF 123].
Defendant responded in opposition. ECF 128. This Motion fails for two principal reasons. First,
Plaintiff fails to justify the filing of an amended pleading at this stage in the litigation. Plaintiff
may not presume the ability to file an amended complaint, and any request to amend must address
both Fed. R. Civ. P. 15 and Fed. R. Civ. P. 16 and provide the Court with a sufficient rationale for
why this specific amendment is appropriate.
8 The Court’s conclusion does not change when the Court considers the additional documents
found at ECF 51.
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 11 of 16

12
Second, Plaintiff’s proposed Fifth Amended Complaint is remarkably similar to her FoAC.
Since it does not resolve any of the concerns noted above about her FoAC, the proposed Fifth
Amended Complaint would be subject to dismissal for the same reasons and, thus, futile. See
Anderson v. Merrill Lynch Pierce Fenner & Smith, Inc., 521 F.3d 1278, 1288 (10th Cir. 2008)
(citing Anderson v. Suiters, 499 F.3d 1228, 1238 (10th Cir. 2007)). As a result, this Court
recommends that Plaintiff’s Motion for Leave to File Fifth Amended Complaint [ECF 122] be
denied.
Dismissal Without Prejudice
The Tenth Circuit recommends that efforts be made to allow parties to amend, especially
pro se plaintiffs, to ensure that justice is served. See Fed. R. Civ. P. 15(a)(2) (“[t]he court should
freely give leave when justice so requires.”); see also Oxendine v. Kaplan, 241 F.3d 1272, 1275
(10th Cir. 2001) (holding that when a 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 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”). Dismissal without prejudice is preferable, and “if it is at all possible that
the party against whom the dismissal is directed can correct the defect in the pleading or state a
claim for relief, the court should dismiss with leave to amend.” Reynoldson, 907 F.2d at 126
(quotation omitted).
While this Court may only consider the information within the four corners of Plaintiff’s
complaint as part of the above analysis under Fed. R. Civ. P. 12(b)(6), Mobley v. McCormick, 40
F.3d 337, 340 (10th Cir. 1994), in determining whether to allow Plaintiff to amend, the Court
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 12 of 16

13
considers additional information from the docket. And in reviewing the record, this Court notes
that Plaintiff has, at times, provided additional information as part of her pleadings to support an
allegation of discrimination based on race. See e.g., ECF 1 & ECF 10. Even as it relates to the
FoAC, Plaintiff referenced additional documents that were not attached. ECF 48 at 7. Plaintiff also
attempted to supplement the factual allegations in the FoAC. See ECFs 59 and 124. This tells the
Court that although multiple amendments have occurred previously, it still may not be futile.
Although this Court recommends denying Plaintiff’s Motion for Leave to Amend [ECF
122] based on the failure to address the applicable rules and the deficient, proposed amended
pleading, this Court nevertheless recommends that the district court grant Plaintiff leave to amend
her FoAC for what is, hopefully, the final time and only as to her § 1981 claim. Plaintiff is advised
that failure to correct the pleading deficiencies identified herein may lead the Court to determine
that future amendments would be futile, and dismissal with prejudice would then be appropriate.
See Plains Dedicated Finance LLC v. Peterbilt Motors Co., 2023 WL 2330687, at *3 (D. Colo.
Mar. 1, 2023) (citing Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th Cir. 2006))
(finding dismissal with prejudice to be appropriate when plaintiff failed to correct pleading
deficiencies). Additionally, the Court advises Plaintiff that she may not simply incorporate prior
complaints into the new complaint by reference; the new pleading must stand alone and will take
the place of all other prior iterations. And she should attach any documents that she would like the
Court to consider as part of the new pleading and reference each document in the body of the
complaint in order to demonstrate how they relate to her claim. Finally, if allowed, Plaintiff is
cautioned that leave to amend would only be to remedy the defects of her § 1981 race
discrimination claim. Any amended pleading that seeks to expand the scope of litigation by adding
parties or additional claims may be summarily stricken.
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 13 of 16

14
Plaintiff’s Motion for Leave to File Sur-Reply Out of Time in Opposition to
Defendant’s Motion to Dismiss [ECF 59] and Motion to Supplement Opposition to
Defendant’s Motion to Dismiss with Supplemental Brief on Disparate Treatment and
Pretext [ECF 124]
On June 11, 2025, Plaintiff filed her Motion for Leave to File Sur-Reply Out of Time in
Opposition to Defendant’s Motion to Dismiss [ECF 59]. Then, on January 15, 2026, Plaintiff filed
a Motion to Supplement Opposition to Defendant’s Motion to Dismiss with Supplemental Brief
and Disparate Treatment and Pretext [ECF 124]. Defendant responded in opposition to ECF 124.
ECF 129. Essentially, both Plaintiff’s filings seek to accomplish the same goal: to add factual
support to the FoAC. While ECF 59 does contain some legal argument,9 the lion’s share of the
filings consists of attachments and factual clarifications.
The Court denies both motions. First, courts generally do not consider issues raised for the
first time in a reply or sur reply brief. See Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000)
(citing Headrick v. Rockwell Intern. Corp., 24 F.3d 1272, 1278 (10th Cir. 1994)). And second, in
a motion to dismiss under Rule 12(b)(6), “[w]hen a party presents matters outside of the pleadings
for consideration, as a general rule ‘the court must either exclude the material or treat the motion
as one for summary judgment.’” Brokers’ Choice of America, Inc. v. NBC Universal, Inc., 861
F.3d 1081, 1103 (10th Cir. 2017) (quoting Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir.
2004)). The Court thus declines to consider these new materials as part of this Report and
Recommendation and does not convert this 12(b)(6) motion to a motion for summary judgment.
To rule otherwise would cause this process to become a moving target, with Defendant having to
respond, yet again, to a changing set of facts and arguments.
9 None of the cases cited by Plaintiff impact the Court’s Recommendation on Defendant’s Motion
to Dismiss. Plaintiff is advised that any case citation should include a reference to the page number
where the citation may be found. Simply citing the case is insufficient.
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 14 of 16

15
CONCLUSION
For the reasons set forth above, Plaintiff’s Motion for Leave to File Sur-Reply Out of Time
in Opposition to Defendant’s Motion to Dismiss [ECF 59] and Motion to Supplement Opposition
to Defendant’s Motion to Dismiss with Supplemental Brief on Disparate Treatment and Pretext
[ECF 124] are DENIED.
The Court respectfully RECOMMENDS:10
1) 	that Defendant’s Motion to Dismiss Plaintiff’s Fourth Amended Complaint [ECF 53]
be GRANTED and:
• 	Plaintiff’s claim under Title VII be dismissed with prejudice, and
• 	Plaintiff’s claim under 42 U.S.C. § 1981 be dismissed without prejudice.
2) 	that Plaintiff’s Motion for Leave to File Fifth Amended Complaint [ECF 122] be
DENIED.
10 All parties shall have fourteen (14) days after service hereof to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is assigned.
Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or
recommendations to which the objections are being made. The District Court need not consider
frivolous, conclusive or general objections. A party’s failure to file such written objections to
proposed findings and recommendations contained in this report may bar the party from a de novo
determination by the District Judge of the proposed findings and recommendations. United States
v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file
written objections to the proposed findings and recommendations within fourteen (14) days after
being served with a copy may bar the aggrieved party from appealing the factual findings and legal
conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v.
Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656,
659 (10th Cir. 1991)).
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 15 of 16

16
DATED at Denver, Colorado, this 12th day of February, 2026.
BY THE COURT:
Timothy P. O’Hara
United States Magistrate Judge
Case No. 1:24-cv-03037-CNS-TPO Document 133 filed 02/12/26 USDC Colorado
pg 16 of 16