Ybarra v. Custer County Board of County Commissioners, The

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Maritza Dominguez Braswell
Civil Action No. 25–cv–00490–MDB
STEPHANIE YBARRA,
Plaintiff,
v.
THE BOARD OF COUNTY COMMISSIONERS, CUSTER COUNTY,
TOM FLOWER, and
KELLY CAMPER,
Defendants.
ORDER
This matter comes before the Court on Defendants’ “Motion to Dismiss Second Amended
Complaint [ECF 26].” ([“Motion”], Doc. No. 30.) Plaintiff filed a response and Defendants replied.
([“Response”], Doc. No. 46; [“Reply”], Doc. No. 49). For the following reasons, the Motion is
GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff brings both state and federal employment claims against the Custer County Board
of Commissioners (“Board”) and two individuals for alleged acts that occurred during her
employment with Custer County (“County”). (Doc. No. 26 at 26-39, ¶¶ 149-247.) Plaintiff worked
as a custodian for the County from December 2018 until September 2023, when she resigned. (Id.
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at 4, ¶ 8.) During her employment, she apparently reported to Commissioner Kevin Day.1 (Id. at
9, ¶ 46.) Defendant Kelley Camper serves as the County Clerk and Recorder, a position she held
during Plaintiff’s period of employment. (Id. at 4, ¶ 6) Defendant Tom Flower served as a Custer
County Commissioner during that period until his recall in August 2023. (Id. at 4, ¶ 2.)
Plaintiff alleges that, in December 2021, Defendant Flower “began consistently employing
intimidating tactics” toward Plaintiff after her significant other publicly called for Defendant
Flower’s resignation over alleged mistreatment of another female County employee.2 (Id. at 6, 9,
¶¶ 19, 43.) Plaintiff says she became active in the effort to recall Defendant Flower in 2022, which
in turn escalated the alleged harassment.3 (See id.at 9-10, ¶¶ 48, 51-52.) Plaintiff also alleges that
Defendant Camper joined in Defendant Flower’s “campaign of harassment and retaliation” against
Plaintiff. (Id. at 10, ¶ 49.)
In February 2023, Plaintiff submitted a formal complaint about Defendant Flower to the
County. (Id. at 12, ¶ 61.) However, Plaintiff alleges the County failed to act on the complaint and
as a result, her work environment “became increasingly hostile.” (Id. at 13-14, ¶¶ 68-73).4
In October 2022, Defendant Camper deemed the petition to recall Defendant Flower
insufficient, which in turn triggered a lawsuit to overturn that decision. (Id. at 14 n.1; see id. at 12,
¶¶ 59-60.) In a subsequent ruling, the Custer County District Court overturned Defendant
Camper’s determination and ordered that the recall process proceed. (Id. at 14 n.1, ¶ 74.) Plaintiff
1 The Complaint states that Day was Plaintiff’s “point of contact” starting in February 2022.
(Doc. No. 26 at 9, ¶ 46.)
2 Those tactics allegedly included “hostile gestures, sustained glaring, and other non-verbal
harassment” toward Plaintiff. (Id. at 9, ¶ 43.)
3 Plaintiff alleges that Camper leaked a list of the recall petition’s signatories to Flower, which
allowed Flower to identify and target Plaintiff. (Id. at 11-12, ¶¶ 57-58.)
4 Plaintiff alleges that several other female employees filed complaints about Flower and that the
County also failed to act on those complaints. (Id. at 6, ¶¶ 18, 23.)
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alleges that, soon after that ruling, Defendant Flower began openly making derogatory comments
to Plaintiff, muttering comments under his breath, and “giv[ing] her dirty looks.” (Id. at 14, ¶ 76
(alleging Flower called her a “F_cking Bitch” and “Stupid Bitch”).) Ultimately, the recall effort
was successful, and Defendant Flower was removed from office in August 2023. (Id. at 15, ¶ 82.)
Despite Defendant Flower’s recall, Plaintiff alleges that Defendant Camper continued to
encourage other employees to ignore her. (Id. at 15-16, ¶¶ 84-87, 89.) Plaintiff says Defendant
Camper made “false and misleading” representations to the Board and the County’s human
resources department that other employees and the public were complaining about the quality of
Plaintiff’s work. (Id. at 16-17, ¶¶ 92-93.) Plaintiff alleges that as a result of Defendant Camper’s
campaign, Plaintiff was eventually barred from cleaning “roughly half” of the County’s main
government building, which in turn reduced Plaintiff’s work hours “by approximately half.”5 (Id.
at 16-17, ¶¶ 88-89, 91, 94-97.) In response, Plaintiff submitted a complaint about Defendant
Camper’s conduct to the County. (Id.at 18, ¶ 101.) Five days later, Plaintiff resigned. (Id. at 18, ¶¶
101, 105.)
Plaintiff filed a written charge with the Colorado Civil Rights Division (“CCRD”) in
October 2023, around one month after her resignation. (Id. at 3, ¶ 9.) That charge was then cross-
filed with the Equal Employment Opportunity Commission (“EEOC”). (Id.) On July 24, 2025,
Plaintiff filed the operative complaint naming the Board and individual Defendants Flower and
Camper. (Id. at 1-3, 39.) Defendants contend that Plaintiff’s employment claims under the
Colorado Anti-Discrimination Act (“CADA”) and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., must be dismissed for failure to exhaust administrative remedies. (Doc.
5 Plaintiff alleges that individual employees, including Camper, accomplished this by removing
keys from Plaintiff’s keyring, which prevented her from accessing certain areas. (Id. at 17, ¶¶ 93-
94.)
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No. 30 at 3-4.) Defendants further argue that Plaintiff has failed to plausibly state any of her claims.
(Id. at 4-21.)
LEGAL STANDARD
I. 	Federa1 Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure Rule 12(b)(1) allows a court to dismiss a claim for lack of
subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff’s case but a determination that the court lacks authority to
adjudicate the matter, attacking the existence of jurisdiction rather than the complaint’s allegations.
Creek Red Nation, LLC v. Jeffco Midget Football Ass’n., Inc., 175 F. Supp. 3d 1290, 1293 (D.
Colo. 2016).
Attacks on jurisdiction may be facial or factual. Gabriel v. United States, 683 Fed. Appx.
671, 673 (10th Cir. 2017). “In a factual attack, the movant ‘goes beyond allegations contained in
the complaint [to] challenge the facts upon which subject-matter jurisdiction depends.” Id.
(alteration in original) (quoting Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995)).
When addressing a factual attack on jurisdiction, such as one based on failure to exhaust
administrative remedies, “a court’s reference to evidence outside the pleadings does not convert
the motion to a Rule 56 motion” for summary judgment. Id. (quoting Holt, 46 F.3d at 1002-03).
Conversion is appropriate only when “the jurisdictional question is intertwined with the merits of
the case.” Id. (quoting Holt, 46 F.3d at 1002-03). Such intertwining exists when “resolution of the
jurisdictional question requires resolution of an aspect of the substantive claim.” See id. at 673-74
(quoting Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000)).
II. 	Federal Rule of Civil Procedure 12(b)(6)
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Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a
claim for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “The
court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might
present at trial, but to assess whether the plaintiff’s complaint alone is legally sufficient to state a
claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.
2003) (internal quotation marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon,
935 F.2d 1106, 1109 (10th Cir. 1991). “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) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). All that is required is plausibility, not probability. Plausibility, in the context of a
Rule 12(b)(6) motion to dismiss, means that the plaintiff pled facts that allow “the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Indeed, a well-
pleaded complaint can survive a motion to dismiss even if “recovery is very remote and unlikely.”
Twombly, 550 U.S. at 555 (quoting Scheuer v. Rhodes, 416 U.S. 232 (1974)).
Factual assertions are key; when a plaintiff offers no more than conclusory allegations
lacking factual support, the Court need not accept them. S. Disposal, Inc., v. Tex. Waste, 161 F.3d
1259, 1262 (10th Cir. 1998). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citation
omitted). Moreover, the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Forest Guardians v. Forsgren, 478 F.3d 1149, 1152
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(10th Cir. 2007) Ultimately, the Court evaluates “whether the complaint sufficiently alleges facts
supporting all the elements necessary to establish an entitlement to relief under the legal theory
proposed.” Id. at 1160
ANALYSIS
Plaintiff’s claims fall into two broad categories: first, Plaintiff brings discrimination and
retaliation claims under CADA and Title VII, as well as related workplace disputes, in Claims
One, Two, Three, Five and Eight. Second, Plaintiff alleges First Amendment violations under 42
U.S.C. §§ 1983 and 1985(3) in Claims Four, Six, and Seven. (Doc. No. 26 at 26-39, ¶¶ 149-247.)
Defendants seek dismissal of most of the claims in the first category on the basis that
Plaintiff failed to exhaust her administrative remedies. (Doc. No. 30 at 3-4.) Defendants also attack
each of Plaintiff’s claims under Rule 12(b)(6). (Id. at 4-22.)
I. 	Claims One, Two, Three, and Five
As to the workplace discrimination and retaliation claims, Defendants raise two exhaustion
arguments. First, and pursuant to CADA, Defendants argue that Plaintiff failed to exhaust her
administrative remedies as to Defendants Flower and Camper because Plaintiff’s October 2023
CCRD complaint only named the Board as a respondent. (Doc. No. 30 at 3-4.) As a result, neither
Defendant Flower nor Camper had proper notice of Plaintiff’s intent to hold them individually
liable. (Id. at 3.) Second, and pursuant to Title VII, Defendants argue that the CCRD complaint
(which was cross-filed with the EEOC) only identified alleged discriminatory acts that occurred
post-February 2023; therefore, Plaintiff failed to exhaust her administrative remedies as to any
alleged discriminatory conduct that occurred prior to February 2023. (Id. at 4.)
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In addition to their exhaustion arguments, Defendants argue that Plaintiff fails to state a
CADA or Title VII claim. (Id. at 4-21.) The Court first addresses the exhaustion arguments under
CADA and Title VII, then it considers Defendants’ Rule 12(b)(6) arguments.
A. Administrative Exhaustion of CADA Claims
Defendants argue that Plaintiff’s CADA claims, brought against Defendants Flower and
Camper, should be dismissed because the CCRD complaint demonstrates that Plaintiff failed to
exhaust her administrative remedies as to the individual Defendants. (Doc. No. 30 at 3-4.) Plaintiff
responds that analyzing exhaustion is improper at this stage because it requires reviewing
documents and resolving factual issues, both of which require going beyond the pleadings. (Doc.
No. 46 at 1-2.)
Courts in this district have recognized that exhaustion is a prerequisite to exerting subject
matter jurisdiction over CADA claims.6 See Barrington v. United Airlines, Inc., 566 F. Supp. 3d
1102, 1111 (D. Colo. 2021) (observing that “exhaustion continues to be ‘a condition precedent to
bringing an action in district court’ under CADA” (quoting City of Colo. Springs v. Conners, 993
P.2d 1167, 1169 n.3 (Colo. 2000))). An attack on the court’s subject matter jurisdiction can be
facial or factual, depending on whether the attack relies solely on the complaint itself or on
documents outside of the complaint. Holt v. United States, 46 F.3d 1000, 1002-03 (10th Cir. 1995),
abrogated in part on other grounds by Cent. Green. Co. v. United States, 531 U.S. 425 (2001).
Because Defendants’ argument depends on the content of Plaintiff’s CCRD complaint, it
constitutes a factual attack. See Frost v. Med. Man Techs., Inc., 2025 WL 605259, at *13 (D. Colo.
Feb. 25, 2025) (“The failure to exhaust remedies under CADA is more ‘properly characterized [as]
a factual attack on the Court’s subject matter jurisdiction.’”).
6 This requirement stems from CADA itself. C.R.S. § 24-34-306(14) (providing “[n]o person
may file a civil action . . . without first exhausting the proceedings and remedies available”).
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“When reviewing a factual attack on subject matter jurisdiction, a district court may not
presume the truthfulness of the complaint’s factual allegations.” Holt, 46 F.3d at 1003. “A court
has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to
resolve disputed jurisdictional facts under Rule 12(b)(1).” Id. “In such instances, a court’s
reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion”
unless “the jurisdictional question is intertwined with the merits of the case.” Id. The touchstone
of this latter inquiry “is whether resolution of the jurisdictional question requires resolution of an
aspect of the substantive claim.” Pringle v. United States, 208 F.3d 1220, 1223 (10th Cir. 2000).
Here, the Court does not need to reach the merits of the claims or defenses to determine
whether Plaintiff’s failure to name Defendants Flower and Camper in her CCRD complaint is a
failure to exhaust her administrative remedies. See Lasser v. Charter Comm’cns, 2020 WL
2309506, at *4 (D. Colo. Feb. 10, 2020) (“The jurisdictional issue of whether a plaintiff has
exhausted the applicable administrative remedies is not an aspect of the substantive claim of
discrimination and would not require resolution of any aspect of the claim.”). Thus, the Court may
consider evidence outside the pleadings, including the CCRD complaint, without converting the
motion to dismiss into one for summary judgment.7 See, e.g., Bank v. Allied Jewish Fed’n of Colo.,
4 F. Supp. 3d 1238, 1242 (D. Colo 2013) (considering CCRD complaint to analyze exhaustion);
7 Although Defendants couch their motion to dismiss as falling entirely under Rule 12(b)(6),
Rule 12(b)(1) is the proper rule for seeking dismissal based on jurisdictional defects. Johnson v.
SSA Group LLC, 2026 WL 100548, at *2 (D. Colo. Jan. 14, 2026) (“The failure to exhaust
remedies under CADA is . . . properly characterized [as] a factual attack on the Court’s subject
matter jurisdiction.” (alterations in original) (quoting Frost v. Med. Man Techs., Inc., 2025 WL
605259, at *13 (D. Colo. Feb. 25, 2025))). The Court may consider an incorrectly labeled motion
to dismiss under the correct subpart. See Cirocco v. McMahon, 294 F. Supp. 3d 1086, 1100 (D.
Colo 2018) (“The court must thus determine whether defendant’s motion presents a motion to
dismiss under Rule 12(b)(6) or Rule 12(b)(1) before it can properly consider any aspect of the
parties’ merit arguments.”).
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Frost v. Med. Man Techs., Inc., 2025 WL 605259, at *13 (D. Colo. Feb. 25, 2025) (taking judicial
notice of CCRD complaint to analyze exhaustion).
CADA requires a plaintiff to set forth “the name and address of the respondent alleged to
have committed the discriminatory or unfair practice” in the written charge. C.R.S. § 24-34-
306(1)(a)(I). The purpose of this requirement is, among other things, to “afford to the party alleged
to have committed the unfair practice enough notice and knowledge of the unfair practice with
which it is charged.” State ex rel. Colo. C.R. Comm’n v. Adolph Coors Corp., 486 P.2d 43, 45
(Colo. App. 1971). Exhaustion in this context is thus tied to giving a defendant proper notice of
her liability. See Clayton v. Dreamstyle Remodeling of Colo., LLC, 2021 WL 4078911, at *6 (D.
Colo. Sep. 7, 2021) (noting that “[t]o properly exhaust administrative remedies under CADA,”
plaintiff must “stat[e] the name and address of the respondent” in complaint). Several courts in
this district have held that a defendant who is referenced but not identified as a respondent lacks
sufficient notice to satisfy CADA’s exhaustion requirement. See id. (finding failure to exhaust as
to defendant referenced “numerous” times in complaint but not identified as respondent); Bank, 4
F. Supp. 3d at 1242 (finding plaintiff failed to exhaust administrative remedies as to defendant
who was referenced in complaint but not named as respondent); Lasser, 2020 WL 2309506, at *6
(finding plaintiff failed to exhaust administrative remedies as to defendant who was mentioned in
exhibit to complaint but not identified as respondent); cf. Worrell v. Colo. Cmty. Bank, 2010 WL
2943487, *3 (D. Colo. July 21, 2010) (finding plaintiff failed to exhaust administrative remedies
as to defendant who was identified by title in complaint but not named as respondent); Wright v.
Ball Metalpack Corp., 2021 WL 12298860, at *6-7 (D. Colo. Aug. 24, 2021) (finding plaintiff
failed to exhaust administrative remedies as to defendant who was identified by title in the written
charge but not named as respondent).
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Here, Plaintiff referenced Defendants Flower and Camper in her written charge, but neither
was identified as a respondent “who discriminated against” her. (Doc. No. 30, Exh. B at 1-2.)
Additionally, Plaintiff did not provide their addresses or other contact information. See Worrell,
2010 WL 2943487, at *3 (noting plaintiff “did not ‘list’ or otherwise identify [defendant’s] name
or address, as required by” CADA). Thus, neither Defendant Flower nor Defendant Camper were
properly placed on notice that Plaintiff intended to charge them individually. See Bank, 4 F. Supp.
3d at 1242 (concluding that references to discriminatory conduct were “insufficient as a matter of
law” to put defendant on notice that plaintiff “was intending to charge him individually”).
Plaintiff insists federal courts apply the four-factor test stated in Romero v. Union Pacific
Railroad, 615 F.2d 1303 (10th Cir. 1980) to determine whether naming a defendant as a respondent
is necessary for exhaustion purposes. (Doc. No. 46 at 2-3.) Plaintiff further argues that applying
Romero raises factual issues unsuited to a motion to dismiss. (Id.) But this argument is unavailing.
First, Romero did not involve CADA; it involved Title VII. See 615 F.2d at 1304. And second,
courts in this district regularly decline to apply Romero to CADA claims. See Lasser, 2020 WL
2309506, at *5-6 (“The thirty- and forty-year old cases Plaintiff relies on do not persuade this
Court that it should apply Romero to his CADA claim.”); Lindsey v. Denver Pub. Schs., 2021 WL
5277826, at *6 (D. Colo. Mar. 22, 2021) (“The Court is not persuaded by Plaintiff’s cited cases
that the Court must apply the Romero test to this CADA claim.”) (Hegarty, Mag. J.),
recommendation adopted, 2021 WL 5277825 (D. Colo. May 27, 2021) (Arguello, J.); see also
Lasser, 2020 WL 2309506, at *3 (“[T]he Court is obligated to apply CADA’s substantive law
exhaustion requirements to Plaintiff’s claim.”).
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In sum, Plaintiff’s failure to name Defendants Flower and Camper as respondents in her
CCRD complaint dooms her CADA claims against them. Accordingly, these claims should be
dismissed without prejudice for failure to exhaust administrative remedies.8
B. Administrative Exhaustion of Title VII Claims
Defendants argue that Plaintiff should be precluded from bringing any Title VII claim
based on events occurring prior to February 2023 because her CCRD complaint only references
events from February 2023 onward. (Doc. No. 30 at 3-4.) However, Plaintiff does not bring
separate Title VII claims based on pre-February 2023 events. (See Doc. No. 26 at 4-29, 32-34.)
Rather, Plaintiff alleges a steady stream of discriminatory or retaliatory conduct that continued
until her resignation in September 2023. (See id.) “As many courts have recognized, parties may
not use Rule 12(b)(6) to dismiss only parts of a claim.” FTC v. Nudge, LLC, 430 F. Supp. 3d 1230,
1246 (D. Utah 2019). At this juncture, Defendants cannot effect “piecemeal dismissals of parts of
claims” by drawing an artificial line between pre- and post-February 2023 events. BBL, Inc. v. City
of Angola, 809 F.3d 317, 325 (7th Cir. 2015).
C. Failure to State a Title VII Claim
Defendants argue that Plaintiff has failed to state a claim under Title VII for discrimination,
hostile work environment, retaliation, or constructive discharge. (Doc. No. 30 at 4-14.) The Court
addresses each claim separately.
1. 	Title VII Discrimination on the Basis of Sex
8 In dismissing CADA claims for failure to exhaust administrative remedies, courts in this
district have done so both with and without prejudice. Compare Clayton v. Dreamstyle
Remodeling of Colo., LLC, 2021 WL 4078911, at *13 (D. Colo. Sep. 7, 2021) (dismissing
CADA claims without prejudice), with Bank v. Allied Jewish Fed’n of Colo., 4 F. Supp. 3d 1238,
1243 (D. Colo. 2013) (dismissing CADA claims with prejudice). However, the Tenth Circuit has
held that dismissals based on jurisdictional defects should be without prejudice. Brereton v.
Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006); see also Fed. R. Civ. P. 41(b).
Accordingly, the Court does so here.
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In general, a plaintiff can state a claim of employment discrimination under Title VII in
two ways. First, she can provide direct evidence of discrimination. McNellis v. Douglas Cnty. Sch.
Dist., 116 F.4th 1122, 1137 (10th Cir. 2024). “Direct evidence is ‘[e]vidence, which if believed,
proves [the] existence of [a] fact in issue without inference or presumption.” Id. (alterations in
original) (quoting Shorter v. ICG Holdings, Inc., 188 F.3d 1204, 1207 (10th Cir. 1999)). Second,
and more commonly, she can use circumstantial evidence “[u]nder McDonnell Douglas, a three-
step analysis [that typically] requires the plaintiff first prove a prima facie case of discrimination.”
Id. (quoting Khalik, 671 F.3d at 1194). Under McDonnell Douglas, a plaintiff must plausibly allege
that: “(1) ‘she is a member of a protected class,’ (2) ‘she suffered an adverse employment action,’
and (3) ‘the challenged action occurred under circumstances giving rise to an inference of
discrimination.’” Id. at 1139 (quoting Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1266
(10th Cir. 2015)).
“Of course, at the 12(b)(6) stage, a plaintiff need not conclusively prove a violation of Title
VII. And the McDonnell Douglas burden shifting framework ‘does not create a pleading
requirement.’” Id. (emphasis in original) (quoting Barrett v. Salt Lake Cnty., 754 F.3d 864, 867
(10th Cir. 2014)). Rather, a “plaintiff must ‘nudge [her] claims across the line from conceivable to
plausible.’” Id. (quoting Khalik, 671 F.3d at 1190).
Defendants argue that Plaintiff has not sufficiently alleged an adverse employment action,
or causation: that is, that she suffered an adverse action because of her sex. (Doc. No. 30 at 5-11.)
Plaintiff responds that she has alleged sufficient facts to plausibly satisfy the McDonnell Douglas
framework. (See Doc. No. 46 at 6.)
a) 	Adverse Action
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Adverse employment actions are “those that constitute a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Scheer v. Sisters of Charity
of Leavenworth Health Sys., Inc., 144 F.4th 1212, 1215 (10th Cir. 2025) (cleaned up, internal
quotations omitted).
Here, Plaintiff has alleged adverse employment action, including the reduction of her work
hours.9 (Doc. No. 46 at 4-5; see Doc. No. 26 at 26, ¶¶ 152-55.) The loss of work hours resulted in
her “compensation being cut in half.” (Doc. No. 26 at 18.) The halving of an employee’s
compensation is clearly a “harm respecting an identifiable term or condition of employment.”
Muldrow v. City of St. Louis, Missouri, 601 U.S. 346, 355 (2024). Plaintiff also says the County’s
inaction following her report of Defendant Flower’s conduct was an adverse action. (Id. at 26, ¶
154.) At least one other court in this district has recognized that a refusal to investigate a complaint
of discriminatory conduct can constitute an adverse employment action. See Revan v. Univ. of
Denver Dep’t of Campus Pub. Safety, 2026 WL 376809, at *4-5 (D. Colo. Feb. 11, 2026). There,
as here, the plaintiff alleged that the failure to take action subjected him to further harassment. Id.
at *5. And there, as here, the plaintiff alleged that the harassment intensified. Id.
b) 	Causation
A plaintiff can establish “circumstances giving rise to an inference of discrimination” by
alleging “‘actions or remarks made by decisionmakers,’ ‘preferential treatment given to employees
outside the protected class,’ or ‘more generally, upon the timing or sequence of events leading to
plaintiff’s termination.’” Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012) (quoting
9 She also alleges: “being denied equipment to perform her job adequately,” “Flower and
Camper encouraging co-worker hostility,” and Camper fabricating complaints about Plaintiff’s
work performance, all of which ultimately resulted in her resignation. (Doc. No. 46 at 6.)
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Plotke v. White, 405 F.3d 1092, 1101 (10th Cir. 2005)). However, conduct that is solely motivated
by retaliation, rather than class-based animus, does not support an inference of discrimination. See
Brown v. LaFerry’s LP Gas Co., Inc., 708 F. App’x 518, 522 (10th Cir. 2017) (noting that “[i]f
retaliation was [defendant’s] sole motivation,” then such “retaliatory conduct does not support
[plaintiff’s] claim of racially motivated harassment” (citing Burkhart v. Am. Railcar Indus., Inc.,
603 F.3d 472, 476 (8th Cir. 2010))).
Defendants argue that, even if Plaintiff has plausibly alleged an adverse employment
action, she has failed to allege that any such action was due to her membership in a protected class.
(Doc. No. 30 at 8-11.) Instead, Plaintiff has merely pled that Defendants harassed her because of
her participation in Defendant Flower’s recall and because she filed a complaint. (Id.) Plaintiff
responds that she has alleged circumstances giving rise to an inference of discrimination,
including, “Flower’s longstanding animus toward female employees” and his treatment of female
employees, including Plaintiff.10 (Doc. No. 46 at 6; Doc. No. 46 at 5, 7, ¶ 15-16, 24, 37.)
After carefully considering the allegations in the Complaint, the Court finds they are just enough
to nudge Plaintiff’s claim across the line. Although many of Plaintiff’s allegations link the
problematic conduct to her recall efforts (suggesting retaliation not discrimination),11 Plaintiff’s
allegations include various instances of what appear to be gender-motivated comments, actions,
10 Flower’s treatment of female employees allegedly included “ignoring them, bullying them,
speaking in a condescending, dismissive, or disrespectful tone, questioning their job
performance, and interfering with their job duties.” (Doc. No. 46 at 6; Doc. No. 46 at 5, 7, ¶ 15-
16, 24, 37.)
11 For example, Plaintiff says Defendant Flower began targeting her with “openly hostile”
conduct after her significant other called for Defendant Flower’s resignation in a public meeting
in December 2021. (Doc. No. 26 at 6, 9, ¶¶ 19, 43.) Then, from “the summer of 2022 [to] the
summer of 2023,” Defendants Flower and Camper “engaged in a campaign of harassment and
retaliation” against Plaintiff because of her support for Defendant Flower’s recall and her
complaints about his behavior. (Id. at 10, ¶ 49.)
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and animus. For example, Defendant Flower allegedly made comments that “women shouldn’t be
allowed to do certain things” and that “women were ‘worthless.’” (See id. at 20-21, ¶ 117.) He also
“routinely” mistreated female employees by “bullying them,” “speaking in a condescending,
dismissive, or disrespectful tone” toward them, and even insulting them. (Doc. No. 26 at 5-6, 8, ¶
17, 37 (alleging Flower called another woman a “little f_cker”).) And she alleges that Defendant
Flower made female employees “visibly uncomfortable” by “sitting on [their] desks” and “giving
[them] backrubs.” (Doc. No. 26 at ¶ 38.)
Even neutral conduct can support a finding of discriminatory motive when “viewed in the
context of other, overtly [ ] discriminatory conduct.” Brown, 708 F. App’x at 522. In E.E.O.C. v.
PVNF, L.L.C., the Tenth Circuit held that the allegedly “nonsexual” use of the word “bitch,”
alongside “indisputably gender-related remarks,” raised a factual issue regarding whether the
former comments “were made because of gender animus.” 487 F.3d 790, 799 (10th Cir. 2007).
Here, calling Plaintiff a “F_king Bitch” and “Stupid Bitch,” and “muttering other comments under
his breath,” coupled with the generally offensive and allegedly intimidating behavior towards her
and other women, is sufficient to show—at least at the pleading stage—that Plaintiff suffered an
adverse employment action under circumstances giving rise to an inference of discrimination.
2. 	Title VII Hostile Work Environment
To succeed on a hostile work environment claim, a plaintiff must show (1) she was
discriminated against because of her sex, and (2) the discrimination was sufficiently severe or
pervasive such that it altered the terms or conditions of her employment. Throupe v. Univ. of
Denver, 988 F.3d 1243, 1251 (10th Cir. 2021) (citing Sanderson v. Wyo. Highway Patrol, 976
F.3d 1164, 1174 (10th Cir. 2020)).
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“For harassment to be sufficiently severe or pervasive to alter the terms, conditions, or
privileges of employment, the complained-of conduct must be both objectively and subjectively
offensive.” Young v. Colo. Dep’t of Corr., 94 F.4th 1242, 1250 (10th Cir. 2024). “Evidence of a
general work atmosphere . . . as well as evidence of specific hostility directed toward the plaintiff
[ ]—is an important factor in evaluating” a hostile work environment claim. Hicks v. Gates Rubber
Co., 833 F.2d 1406, 1415 (10th Cir. 1987).
Defendants argue that the alleged harassment was not motivated by gender animus or
sufficiently severe and pervasive to support a hostile work environment claim under Title VII.
(Doc. No. 30 at 11-12.) The Court has already found the allegations sufficient to give rise to an
inference of gender-based discrimination, see supra Part I.C.1, therefore the only question is
whether the conduct, as alleged, is sufficiently severe and pervasive.
“Title VII’s prohibition of harassment on the basis of sex forbids only behavior ‘so
objectively offensive as to alter the “conditions” of the victim’s employment.’” Harsco Corp. v.
Renner, 475 F.3d 1179, 1187 (10th Cir. 2007) (quoting Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 81 (1998)). “[R]un-of-the-mill boorish, juvenile, or annoying behavior . . . is not the
stuff of a Title VII hostile work environment claim.” Morris v. City of Colo. Springs, 666 F.3d
654, 664 (10th Cir. 2012). Moreover, the severity of conduct has both objective and subjective
components: courts “must assess ‘the objective severity of the harassment from the perspective of
a reasonable person in the plaintiff’s position, considering all the circumstances.” Id. (quoting
Harsco Corp., 475 F.3d at 1187). Courts consider “the frequency of the 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.” Harsco Corp., 475 F.3d at 1187
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In Sprague v. Thorn Americas, Inc.,
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the Tenth Circuit found that five separate incidents—involving “unpleasant and boorish”
comments—over the span of around 16 months did not establish a hostile work environment. 129
F.3d 1355, 1366 (10th Cir. 1997).
Still, even isolated incidents of gender-based harassment may support a hostile work
environment claim “when they are ‘threatening and severe.’” Marks v. Sessions, 2017 WL
4278498, at *6 (D. Colo. Sep. 27, 2017) (quoting Morris v. City of Colo. Springs, 666 F.3d 654,
666-67 (10th Cir. 2012)). In Chavez v. New Mexico, “a number of gender-based incidents,”
including unwanted sexual contact and gendered slurs, and “multiple incidents of hostile and
physically threatening conduct not necessarily connected to gender,” were sufficient. 397 F.3d
826, 833-35 (10th Cir. 2005).
Here, Defendants argue that Plaintiff alleges “at most, two instances of” verbal harassment
from Defendant Flower, and she did not find his comments subjectively offensive. (Doc. No. 30
at 11-12.) Plaintiff responds that she alleged “a long history of discrimination and harassment
involving no less than four [other] women,” and it is “patently obvious” that such conduct “was
unwanted.” (Doc. No. 46 at 8.) The Court finds Plaintiff’s allegations sufficient at this stage.
First, although Plaintiff references only a handful of specific comments from Defendant
Flower, the specific language is particularly hostile. (See id. at 5-6, 14, ¶¶ 16-17, 76 (calling Hobby
“a little fucker,” telling Hobby “women shouldn’t be allowed to do certain things,” and calling
Plaintiff a “fucking bitch” and “stupid bitch”). Second, Plaintiff alleges that Defendant Flower
stared at her, gave her menacing looks, (see Doc. No. 26 at 9, 14, ¶¶ 43, 76), and while that alone
may be insufficient to satisfy the high bar of a hostile work environment claim, she also alleges
that Defendant Flower engaged in inappropriate behavior toward female employees, including the
physically intrusive behavior of sitting on women’s desks and giving unsolicited backrubs.
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Additionally, Plaintiff alleges that his behavior towards woman was so problematic that several
women quit because of it. (Id. at 6-8, ¶ 30, 40.) Moreover, the enter Complaint centers on a recall
effort that was based on Defendant Flower’s ill treatment of women.
Plaintiff has a heavy burden to carry in proving both the objective and subjective prong of
this claim, but at this stage, and drawing all reasonable inferences in her favor, she has pled enough
to survive the 12(b)(6) challenge.
3. 	Title VII Retaliation
Title VII prohibits an employer from retaliating against an employee because she has
“opposed any practice made an unlawful employment practice by” the statute or “made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under
the same. 42 U.S.C. § 2000e-3(a). A plaintiff bringing a Title VII retaliation claim in the Tenth
Circuit must plausibly allege: “(1) that [s]he engaged in protected opposition to discrimination, (2)
that a reasonable employee would have found the challenged [retaliatory] action materially
adverse, and (3) that a causal connection existed between the protected activity and the materially
adverse action.” Reznik v. inContact, Inc., 18 F.4th 1257, 1260 (10th Cir. 2021) (first alteration in
original) (quoting Khalik, 671 F.3d at 1193).
Defendants concede that Plaintiff’s signing of Defendant Flower’s 	recall petition;
submitting a complaint about Defendant Flower to the Board and, later, to the CCRD; and having
the complaint published in the local newspaper “might be sufficient to show Plaintiff ‘engaged in
protected activity.’” (Doc. No. 30 at 12) See also Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015
(10th Cir. 2004) (“Protected opposition can range from filing formal charges to voicing informal
complaints to superiors.”). However, Defendants argue that Plaintiff failed to plausibly allege that
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she suffered materially adverse action or that such action was caused by engaging in protected
activity. (Doc. No. 30 at 12-13.) The Court disagrees.
The material adversity requirement is judged by an objective standard: “[W]hether a
reasonable employee ‘would have found the defendant’s conduct sufficiently adverse that he or
she well might have been dissuaded by such conduct from making or supporting a charge of
discrimination.’” Somoza, 513 F.3d at 1214 (quoting Williams v. W.D. Sports, N.M., Inc., 497 F.3d
1079, 1090 (10th Cir. 2007)). This is a higher bar than the adverse employment action requirement
for Title VII discrimination claims. See Muldrow, 601 U.S. at 357. Here, Plaintiff alleges that after
she filed a complaint of discrimination against Defendant Flower, she was subjected to adverse
employment actions including: 1) the loss of access to certain workspaces, which resulted in losing
approximately half of her work hours; 2) “the deliberate creation of an intolerably hostile work
environment”; and 3) coworker hostility.12 (Doc. No. 26 at 28-29, ¶¶ 173-74.) The Court concludes
that, at the very least, the loss of half of Plaintiff’s work hours plausibly constituted a materially
adverse employment action. Cf. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 70-71
(2006) (finding reassignment to labor that was “more arduous and dirtier” could be materially
adverse).
Plaintiff also sufficiently alleges a causal connection between her complaints against
Defendant Flower and the materially adverse action. (Doc. No. 46 at 6-7.) A plaintiff can establish
a causal connection by presenting “evidence of circumstances that justify an inference of
retaliatory motive.” Iweha v. State of Kan., 121 F.4th 1236 (10th Cir. 2024) (quoting Ward v.
Jewell, 772 F.3d 1190, 1203 (10th Cir. 2014)). Generally, the plaintiff “must show that the
12 Plaintiff also alleges she was “denied equipment needed to perform her job,” and that
Defendant Camper led “a campaign” to fabricate complaints about Plaintiff’s work performance.
(Doc. No. 26 at 13, 16, ¶¶ 64, 92.)
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individual who took adverse action against [her] knew of the employee’s protected activity.” Id.
(quoting Montes v. Vail Clinic, Inc., 497 F.3d 1160, 1176 (10th Cir. 2007)). “If the protected
conduct is closely followed by the adverse action, courts have often inferred a causal connection.”
Ward, 772 F.3d at 1203.
Here, Plaintiff submitted her complaint to the Board on February 27, 2023. (Doc. No. 26
at 12, ¶ 61.) She filed it with the CCRD on March 3, 2023. (Id. at 13, ¶ 66.) She alleges that
Defendant Flower began verbally abusing her “[s]hortly after” a state court ordered Defendant
Flower’s recall to proceed on May 31, 2023. (Id. at 14, ¶ 76.) She further alleges that Defendant
Camper pressured other employees to bar Plaintiff from cleaning their offices shortly after doing
so herself on August 24, 2023. (Id. at 16-17, ¶¶ 92-97.) A separation of three to six months is not
so attenuated that it precludes causation. See Hansen v. Skywest Airlines, 844 F.3d 914, 926 (10th
Circuit 2016) (holding that existence of causal link between Fall 2010 report and January 2011
termination was a question for jury).
Because Plaintiff has plausibly alleged that she suffered materially adverse employment
action as a result of her engagement in protected activity, the Court concludes that Plaintiff has
stated a plausible claim for retaliation under Title VII. 13
II. 	Claims Four, Six, Seven, and Eight
Defendants contend that Plaintiff has failed to state a plausible claim for First Amendment
retaliation, conspiracy to violate civil rights, discriminatory policy under Monell, and wrongful
termination in violation of public policy. (Doc. No. 30 at 14-21.)
A. First Amendment Claim
13 Because the constructive discharge claim is closely tied to the discrimination, hostile work
environment, and retaliation claims—each of which will survive the Motion— the constructive
discharge claim survives as well.
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Plaintiff alleges that Defendants retaliated against her on the basis of constitutionally
protected speech, and she alleges that Defendants discriminated against her on the basis of her
political beliefs. (Doc. No. 26 at 30-32, ¶¶ 179-97.) Defendants only address the first part of the
claim. (Doc. No. 30 at 14-16.)
In the employment context, courts evaluate claims of retaliation in violation of First
Amendment rights using the Garcetti/Pickering test. See Butler v. Bd. of Cnty. Comm’rs for San
Miguel Cnty., 920 F.3d 651, 655 (10th Cir. 2019). The five-part test asks:
(1) whether the speech was made pursuant to an employee’s official duties; (2)
whether 	the 	speech 	was 	on 	a 	matter 	of 	public 	concern; 	(3) 	whether 	the
government’s interests, as employer, in promoting the efficiency of the public
service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether
the protected speech was a motivating factor in the adverse employment action; and
(5) whether the defendant would have reached the same employment decision in
the absence of the protected conduct.
Butler, 920 F.3d at 655 (quoting Bailey v. Indep. Sch. Dist. No. 69, 896 F.3d 1176, 1181 (10th Cir.
2018)).
At the outset, Defendants deny that Plaintiff has made any constitutionally protected speech
or suffered an adverse employment action. (Doc. No. 30 at 15-16.) However, they dedicate only a
single parenthetical to the first issue, which is insufficient for the Court’s consideration. See
McKissick v. Yuen, 618 F.3d 1177, 1189 (10th 2010) (noting effect of failing to develop argument).
Further, the Court has already established that Plaintiff suffered at least one adverse employment
action in its analysis of her Title VII retaliation claim in Part I.C.3 supra.14 Thus, at issue here is
whether Plaintiff adequately pled the first and second parts of the test.15
14 The adverse employment action standard under the First Amendment is more relaxed than the
materially adverse standard under Title VII. See Maestas v. Segura, 416 F.3d 1182, 1188 n.5
(10th Cir. 2005).
15 Defendants do not address the third element of the test, and the single sentence that
Defendants dedicate to the fifth part of the test misapprehends the Complaint. Plaintiff did not
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a) 	Official Duties
“An employee does not speak pursuant to her official duties merely because her speech
‘owes its existence to’ or ‘relates to’ her employment.” Timmins v. Plotkin, 157 F.4th 1275, 1280
(10th Cir. 2025) (quoting Lane, 573 U.S. at 235). Rather, “an employee’s statements are made
pursuant to official duties when they stemmed from and were the type of activities that they were
paid to do.” Id. (emphasis in original) (quoting Tufaro v. Okla. ex rel. Bd. of Regents of the Univ.
of Okla., 107 F.4th 1121, 1139 (10th Cir. 2024)). “The ‘mere fact that a citizen’s speech concerns
information acquired by virtue of [her] public employment does not transform that speech into
employee—rather than citizen—speech.” Id. (alteration in original) (quoting Lane, 573 U.S. at
240).
For example, in Timmins v. Plotkin, the general counsel of a public entity made statements
to the press and to private citizens regarding alleged corruption by members of the entity’s board.
157 F.4th at 1280-81. The Tenth Circuit concluded that although “[h]er speech to reporters and
private citizens may have related to her job . . . it was not ordinarily within the scope of her duties,”
which included “filing pleadings, responding to discovery requests, and discussing legal issues
and strategy with” the board. Id. at 1280.
Defendants assert that Plaintiff’s speech—participating in Defendant Flower’s recall,
sending her complaint to the Board and newspaper, and voicing her opposition to Defendant
Flower—was made “in the performance and as part of her official duties.” (Doc. No. 30 at 15.)
The Court disagrees.
allege she was forced out “based on Camper’s criticism of her job performance.” Id. She said she
was forced out “because it was no longer financially viable for her to continue working for the
County” after the alleged retaliatory cutting of her hours. (Doc. No. 26 at 18, ¶ 102.)
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Plaintiff was a custodian. (Doc. No. 26 at 4, ¶ 8.) She was responsible for “maintaining
multiple county buildings.” (Id. at 4, ¶ 9.) She did not have “a duty to reveal the Defendants’
malfeasance to the public and to reporters,” nor was she otherwise required to communicate
concerns about Defendant Flower’s conduct to the Board or the public, nor participate in a recall
effort. See Timmins, 157 F.4th at 1280; Cano-Rodriguez v. Adams Sch. Dist. No. 14, 2020 WL
6049531, at *10-11 (D. Colo. Apr. 22, 2020) (finding ESL director was not speaking pursuant to
official duties by reporting discrimination against himself and students). Plaintiff’s speech was not
made pursuant to her official duties.
b) 	Matter of Public Concern
An employee’s speech “involves matters of public concern” if “it can ‘be fairly considered
as relating to any matter of political, social, or other concern to the community,’ or when it ‘is a
subject of legitimate news interest; that is, a subject of general interest and of value and concern
to the public.’” Lane, 573 U.S. at 241 (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). Courts
construe “public concern” very narrowly. Leverington v. City of Colo. Springs, 643 F.3d 719, 727
(10th Cir. 2011). “[S]tatements revealing official impropriety usually involve matters of public
concern.” Butler, 920 F.3d at 656 (quoting Trant v. Oklahoma, 754 F.3d 1158, 1165 (10th Cir.
2014)). However, “[s]peech aimed at ‘air[ing] grievances of a purely personal nature’ is generally
not on a matter of public concern.” Id. (second alteration in original) (quoting Lighton v. Univ. of
Utah, 209 F.3d 1213, 1225 (10th Cir. 2000)).
When assessing whether speech involves a matter of public concern, courts “consider ‘the
content, form, and context of a given statement, as revealed by the whole record.’” Id. at 657
(quoting Bailey, 896 F.3d at 1181). The context of speech includes “the motive of the speaker and
whether the speech is calculated to disclose misconduct or merely deals with personal disputes and
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grievances unrelated to the public’s interest.” Singh v. Cordle, 936 F.3d 1022, 1035 (10th Cir.
2019) (quoting Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1206 (10th Cir.
2007)).
Here, Plaintiff has plausibly alleged that the content, form, and context of her speech was
a matter of public concern. 	In December 2021, Plaintiff’s significant other spoke at a public
meeting in support of Plaintiff’s coworker Jackie Hobby. (Doc. No. 26 at 6, ¶ 19.) The subject of
that meeting was Defendant Flower’s conduct toward Hobby and “a series of [other] women” who
had previously left the County. (Id. at 5-6, ¶¶ 17-19.) Plaintiff’s significant other eventually joined
recall efforts and Plaintiff herself did the same. (See id. at 9, ¶ 43.) These comments were not
“made in a context relating to the resolution of her personal dispute with” Defendant Flower.
Callaway v. Hafeman, 832 F.2d 414, 417 (7th Cir. 1987); see Patrick v. Miller, 953 F.2d 1240,
1247 (10th Cir. 1992) (finding comments about discrimination of public concern because plaintiff
“was speaking in support of other employees” rather than “addressing . . . practices which affected
him directly”). They were matters of public concern. Moreover, the comments and efforts
“concerned 	information 	in 	which 	the 	public 	would 	definitely 	be 	interested”—repeated
discrimination against another female county employee by an elected official. Conaway, 853 F.2d
at 796 (finding plaintiff’s complaints about officials’ misconduct involved matters of public
interest).
Plaintiff’s submission of her complaint to the CCRD was an extension of that activity. The
CCRD is a separate state agency and would not have been involved in the internal grievance
process that stemmed from Plaintiff’s original complaint. Further, Plaintiff submitted her
complaint in support of Hobby approximately eight months prior to filing her own CCRD
complaint. (Doc. No. 26 at 3, 10, ¶¶ 9, 49.) Thus, the submission was not “made in a context
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relating to the resolution of her personal dispute with” Defendant Flower. Callaway v. Hafeman,
832 F.2d 414, 417 (7th Cir. 1987); see Patrick v. Miller, 953 F.2d 1240, 1247 (10th Cir. 1992)
(finding comments about discrimination of public concern because plaintiff “was speaking in
support of other employees” rather than “addressing . . . practices which affected him directly”).
And the submission “concerned information in which the public would definitely be interested”—
repeated discrimination against another female county employee by an elected official. Conaway,
853 F.2d at 796 (finding plaintiff’s complaints about officials’ misconduct involved matters of
public interest).
Likewise, Plaintiff’s submission of her complaint to the local newspaper involved matters
of public concern because of its connection to the recall effort. Plaintiff’s complaint was published
in July 2023, just two months after a state court ordered the recall election to proceed. (Doc. No.
26 at 14 n.1, 15, ¶ 78.) The dissemination of Plaintiff’s complaint to the broader public, coupled
with her support of the recall efforts, suggest her efforts were “calculated to disclose misconduct”
in anticipation of a public election. McEvoy, 882 F.2d at 466-67 & n.1 (noting plaintiff “did not
send [complaint about employer’s policy] to the local newspaper”); cf. Callaway, 832 F.2d at 417
(holding speech not of public concern because plaintiff “wanted her grievance to be resolved
internally to avoid a public controversy”).16
In sum, the Court finds Plaintiff has sufficiently alleged facts in support of her First
Amendment claim.17
16 Plaintiff’s submission of her complaint to the CCRD was in some respects an extension of that
activity, rather than an act to transform that activity into a personal grievance. But in any event,
Plaintiff submitted her complaint in support of Hobby approximately eight months prior to filing
her own CCRD complaint. (Doc. No. 26 at 3, 10, ¶¶ 9, 49.)
17 Defendants Flower and Camper argue they are entitled to qualified immunity because they
“did not violate a clearly established right of which they knew or should have known and should
be shielded from the costs of trial or the broad-reaching discovery.” (Doc. No. 30 at 17.)
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B. Section 1985 Conspiracy Claim
The Tenth Circuit has identified the following elements as essential to a claim under 42
U.S.C. § 1985(3): “(1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges
and immunities; (3) an act in furtherance of the conspiracy; and (4) an injury or deprivation
resulting therefrom.” Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). Section 1985(3)
requires that the conspiracy be motivated by “class-based, invidiously discriminatory animus.” Id.
(quoting Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971)). It only covers conspiracies that are
“aimed 	at 	interfering 	with 	rights 	that 	are protected 	against 	private, 	as 	well 	as 	official,
encroachment.” Id. (quoting Griffin, 403 U.S. at 833). “For a conspiracy to exist, there must be a
meeting of the minds of the conspirators regarding ‘the general conspiratorial objective,’ but there
need not be an express agreement.” Ganzy ex rel. J.G. v. Douglas Cnty. Sch. Dist. RE-1, 744 F.
Supp. 3d 1187, 1193 (D. Colo. 2024) (quoting Snell v. Tunnell, 920 F.2d 673, 702 (10th Cir.
1990)). “The existence of a conspiracy often must be established through circumstantial evidence
as direct evidence of an express agreement is rare.” Id. Further, “[a] violation of section 1985 must
include class-based or racially discriminatory animus.” Bisbee v. Bey, 39 F.3d 1096, 1102 (10th
Cir. 1994).
Defendants assert that Plaintiff has failed to state a claim under Section 1985 because she
has not alleged that Defendants Flower and Camper agreed to act in concert to impede her rights,
actually acted in concert, or were motivated by class-based animus. (Doc. No. 30 at 17-18.) The
However, it is “clearly established” that public employees should not face retaliatory action for
speaking on matters of public concern. See Montgomery v. Bd. of Cnty. Comm’rs of Douglas
Cnty., Colo., 637 F. Supp. 2d 934, 943-44 (D. Colo. 2009) (“The Supreme Court has held that
public employment cannot be conditioned ‘on a basis that infringes the employee’s
constitutionally protected interest in freedom of expression.’” (quoting Connick v. Myers, 461
U.S. 138, 142 (1983))). Because the Court finds Plaintiff’s speech to encompass matters of
public concern, it rejects Defendants’ assertion of qualified immunity.
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Court agrees. Although Plaintiff alleges that Defendants Flower and Camper “colluded in efforts
to deprive” her “of equal protection of the law and to deter [her] from exercising [her] rights,”18
Plaintiff fails to raise the issue of class-based animus as a motivating factor. (Doc. No. 26 at 34-
35, ¶¶ 212-19.) In her response, Plaintiff appears to rely on Brown v. Reardon, 770 F.2d 896, 906
(10th Cir. 1985), to rebut the class-based animus requirement. (See Doc. No. 46 at 21.) Plaintiff
asserts that “[c]ontrary to Defendants’ arguments that Plaintiff’s claim fails” for lack of class-
based animus, “the Courts have recognized that conspiracy claims include conspiracy to violate
First Amendment rights.” (Id.) But Brown expressly affirmed that “it is necessary to invoke the
animus requirement” under Section 1985(3). 770 F.2d at 906-07 (affirming district court’s ruling
that plaintiff’s Section 1985(3) claim failed for lack of racial or class-based animus). Because
Plaintiff fails to do so, she does not plausibly allege a conspiracy to violate her constitutional rights
under Section 1985(3).
Accordingly, Plaintiff’s claim of a conspiracy to violate civil rights under Section 1985
must be dismissed with prejudice.19
C. Section 1983 Monell Claim—First and Fourteenth Amendments
18 That conclusory assertion, while insufficient on its own, is arguably supported by specific
factual allegations. (See, e.g., Doc. No. 26 at 11, ¶¶ 55, 57 (alleging that Defendants Camper
furnished Flower with a list of signatories to his recall petition, which enabled him to target
Plaintiff)).
19 “A dismissal with prejudice is appropriate where a complaint fails to state a claim under Rule
12(b)(5) and granting leave to amend would be futile.” Brereton v. Bountiful City Corp., 434
F.3d 1213, 1219 (10th Cir. 2006). The Court finds that amending this claim would be futile. This
is the second motion to dismiss filed in this case. (See Doc. No. 22.) Plaintiff amended her
Complaint 20 days after the first motion was filed. (See id.; Doc. No. 24.) Accordingly, Plaintiff
was aware of Defendants’ challenges to the sufficiency of her pleading when she amended her
Complaint. Allowing Plaintiff to amend this claim again would unjustly require Defendants to hit
“a moving target.” See Minter v. Prime Equipment Co., 451 F.3d 1196, 1206 (10th Cir. 2006).
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Generally, “vicarious liability does not apply to a municipal entity, and such an entity
cannot be liable simply because it employs someone who commits a constitutional tort.” Frey v.
Town of Jackson, Wyo., 41 F.4th 1223, 1238 (10th Cir. 2022). “A local government unit can be
liable for damages under 42 U.S.C. § 1983 only when its ‘policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury.’” Est. of Burnett v. City of Colo. Springs, 763 F. Supp. 3d 1281, 1286-87 (D. Colo.
2025) (quoting Monell v. Dep’t of Soc. Servs. of City of N.Y., 463 U.S. 658, 694 (1978)).
To adequately state a Monell claim against a governmental entity, “a plaintiff must allege
(1) a constitutional violation (2) caused by (3) a municipal policy or custom.” Frey, 41 F.4th at
1238 (citing Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)).
Defendants focus primarily on whether Plaintiff has alleged facts sufficient to show that
the Board “maintains a widespread custom or policy of” retaliating against employees who
complain about discrimination. (Doc. No. 30 at 19-20.) In Defendants’ view, Plaintiff alleges too
few instances of employee complaints going unanswered to establish the existence of a policy or
custom. (Id.) Defendants also argue that the Complaint fails to link the policy or custom to the
alleged constitutional violation. (Id. at 18.)
Plaintiff responds that Defendants only focus on one of her theories of liability (that
ignoring employee complaints is a widespread, permanent practice). (Doc. No. 46 at 22.) Plaintiff
asserts that, in addition to that theory, she has sufficiently alleges the existence of a policy or
custom in the form of: (1) decisions of employees with final policymaking authority; (2) decisions
of subordinates, which have then been ratified by policymakers; and (3) the failure, through
deliberate indifference, to adequately train or supervise employees.20 (Id. at 22.)
20 The Court rejects Plaintiff’s argument that Defendants, in not addressing these latter theories,
have absolved her of the responsibility to adequately support her claims with sufficient factual
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1. 	Constitutional Violation
“The crux of a municipal-liability claim is that a municipal policy or custom caused the
plaintiff to suffer a constitutional injury.” Frey, 41 F.4th at 1239. Thus, generally, “[w]ithout a
constitutional violation, Plaintiff has suffered no injury for which a municipality can be liable.” Id.
Here, the Court has already determined that Plaintiff has stated First Amendment claim, which
serves as the bases for her Monell claim.21
2. 	Policy or Custom
An “official policy or custom” can “take one of the following forms: (1) a formal regulation
or policy statement”; (2) “a widespread practice that . . . is so permanent and well settled as to
constitute custom or usage with the force of law”; (3) “the decisions of employees with final
policymaking authority”; (4) “the ratification by such final policymakers of the decisions—and
the basis for them—of subordinates” whose authority was delegated by the policymakers; and (5)
“the failure to adequately train or supervise employees, so long as that failure results from
deliberate indifference to the injuries that may be caused.” Waller v. City & Cnty. of Denver, 932
F.3d 1277, 1283 (10th Cir. 2019) (quoting Bryson, 627 F.3d at 788).
In addition to showing a policy or custom, Plaintiff “must also demonstrate that, through
its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of
Cnty. Comm’rs of Bryan Cnty, Okla. v. Brown, 520 U.S. 397, 404 (1997) (emphasis in original).
“That is, a plaintiff must show that the municipal action was taken with the requisite degree of
allegations. (Doc. No. 46 at 22.) Defendants adequately alleged the absence of causation or a
predicate constitutional violation, which are applicable to all of Plaintiff’s theories.
21 Plaintiff argues that her Title VII hostile work environment claim can serve as a predicate
violation for Monell purposes. (See Doc. No. 46 at 22.) The Court rejects that argument. See
Starrett v. Wadley, 876 F.2d 808, 813 (10th Cir. 1989) (“[A] right created solely under Title VII
cannot serve as the basis for an independent remedy under Section 1983.”).
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culpability and must demonstrate a direct causal link between the municipal action and the
deprivation of federal rights.” Id.
a) 	Widespread Practice
To establish municipal liability against the Board via widespread practice, Plaintiff must
demonstrate an informal custom amounting to a “standard operating procedure” of the Board.
Quintana v. Santa Fe Cnty. Bd. of Comm’rs, 973 F.3d 1022, 1054 (10th Cir. 2020) (Bacharach, J.,
concurring) (quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). Such a custom
requires that “the actions of the municipal employees must be ‘continuing, persistent and
widespread,’” Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1274 (10th Cir. 2008) (quoting
Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir. 1993)), which plaintiffs most
commonly prove by offering “evidence suggesting that similarly situated individuals were
mistreated by the municipality in a similar way.” Id. at 1274. Here, Plaintiff must establish a
custom of “failure to receive, investigate or act on” complaints of violations of employees’ First
Amendment rights by showing: 1) the “existence of a continuing, persistent and widespread
practice of unconstitutional misconduct by” County employees; 2) “[d]eliberate indifference to or
tacit approval of such misconduct” by the Board “after notice to the officials of that particular
misconduct”; and 3) that Plaintiff “was injured by virtue of the unconstitutional acts pursuant to
the [B]oard’s custom and that the custom was the moving force behind the unconstitutional acts.”
See Gates, 996 F.2d at 1041.
The Complaint provides a list of alleged widespread practices attributable to the Board: (1)
discrimination by “County representatives”; (2) the Board’s “toleration” of, and failure to address,
such discrimination; (3) “active[] support” of “County representatives who engage in rights
violations”; (4) “[a]ctively making efforts to discredit and force out employees who complain
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about rights violations”22; and (5) “retaliating against employees who complain about rights
violations.” (Doc. No. 26 at 35-36, ¶ 221.) However, these broad, conclusory allegations do not
reference any specific factual allegations in the Complaint. Thus, standing alone, they are
insufficient to “plausibly allege ‘a direct causal link’ between” the violation of Plaintiff’s
constitutional rights and the Board’s practices. See Waller, 932 F.3d at 1285 (citation omitted)
(quoting Brown, 520 U.S. at 404).
Turning to the specific factual allegations elsewhere in the Complaint, the Court finds that
Plaintiff fails to plausibly allege the existence of a widespread practice of constitutional violations
by County employees. In fact, the only instance of a First Amendment23 violation alleged in the
Complaint appears to be the one at issue here and concerning Plaintiff. (See Doc. No. 26.) Further,
Plaintiff alleges only two instances of the Board failing to act on a complaint about Defendant
Flower’s behavior: her complaint and her coworker Hobby’s complaint. (See id. at 4-24, ¶¶ 7-142.)
Other courts in this district have concluded that “two to three incidents . . . is insufficient to
establish a ‘widespread practice.’” Est. of Burnett, 763 F. Supp. 3d at 1288; see Sexton v. Springs,
530 F. Supp. 3d 1044, 1070 (D. Colo. 2021) (finding two incidents insufficient to show a
widespread practice). Further, it is unclear whether Hobby’s situation is comparable to Plaintiff’s.
According to Plaintiff, Hobby had complained to the Board about “harassment and discrimination”
based on her sex. (Doc. No. 26 at 7, ¶ 24.) But there are insufficient details to support a conclusion
that the two matters were part of the same widespread practice. And as noted above, two instances
is not a widespread practice. And finally, Plaintiff does not allege specific facts to demonstrate the
22 Despite accusing the County of discrediting employees who complain about discrimination,
the Complaint fails allege a single instance of the Board doing so. (See Doc. No. 26.) Rather,
such conduct is exclusively attributed to Flower, Camper, and other employees. (See id.)
23 As to the Fourteenth Amendment, Plaintiff brings no such claim.
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Board was deliberately indifferent toward the conduct of Defendants Flower or Camper, or that
such indifference was the “moving force” behind her injuries.
The Court concludes that Plaintiff fails to allege a widespread practice for purposes of
Monell.
b) 	Decisions of Policymakers
The decision of an employee with “final policymaking authority in a certain area . . .
constitutes municipal policy for” Section 1983 purposes.” Randle v. City of Aurora, 69 F.3d 441,
447 (10th Cir. 1995). “A single act of an employee may be imposed on a local government entity
if the employee possesses final authority to establish policy with respect to the challenged action.”
Marshall v. Dix, 640 F. Supp. 3d 1033, 1068 (D. Colo. 2022) (quoting Ireland v. Jefferson Cnty.
Sheriff’s Dep’t, 193 F. Supp. 2d 1201, 1226 (D. Colo. 2002)); see also Dempsey v. City of Baldwin,
143 F. App’x 976, 987-90 (10th Cir. 2005) (analyzing whether city council or mayor had final
authority over personnel issues after plaintiff alleged municipal liability for unconstitutional
termination by mayor).
“The question of who is a ‘policymaker’ is a question of state law.” Dempsey, 143 F. App’x
at 986 (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)). “In looking to state law,
a court must determine which official has final, unreviewable discretion to make a decision or take
an action.” Id. The Tenth Circuit considers three factors relevant to this analysis: “(1) whether the
official is meaningfully constrained ‘by policies not of that official’s own making;’ (2) whether
the official’s decisions are final—i.e., are they subject to any meaningful review; and (3) whether
the policy decision purportedly made by the official is within the realm of the official’s grant of
authority.” Randle, 69 F.3d at 448 (quoting Praprotnik, 485 U.S. at 127).
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Plaintiff alleges that the Board, Defendant Flower, and Defendant Camper were “officials
with final policymaking authority” by virtue of their status as elected officials. (Doc. No. 26 at 24,
¶ 139.) However, the Complaint fails to specifically allege that any Defendant had final
policymaking authority over the specific actions that caused her constitutional injuries. See Smith
v. USD 480 Liberal, 682 F. Supp. 3d 980, 992 (D. Kan. 2023) (dismissing Monell claim where
plaintiff “failed to plausibly allege that [defendant] had final policymaking authority over the
challenged actions”). Indeed, it seems unlikely that Defendant Camper, as the clerk and recorder,
had any authority over Plaintiff’s terms of employment. Likewise, Plaintiff does not allege that
Defendant Flower had authority over Plaintiff’s terms of employment; to the contrary, Plaintiff
says she “requested that Flower not be her ‘point of contact,’” a request that was granted over his
objections. (Doc. No. 26 at 9, ¶¶ 46-47.) These allegations suggest that Defendant Flower lacked
authority over Plaintiff’s terms of employment, and that his attempts to gain such authority were
“meaningfully constrained ‘by policies not of [his] own making.’” Randle, 69 F.3d at 448.
Nor 	does 	Plaintiff 	“identify 	the ‘decisions 	that 	were in 	direct 	violation 	of 	[her]
constitutional rights.’” Marshall, 640 F. Supp. 3d at 1068. Instead, she makes sweeping allegations
of “internal politics and machinations” and a “culture of fear and silencing complaints.” (Doc. No
26 at 23-24, ¶¶ 133-39.) But “these conclusory statements fail to identify a specific decision made
by any particular [County employee] with final policymaking authority.” Marshall, 640 F. Supp.
3d at 1069. Similarly, Plaintiff fails to allege that the actions resulting in her constitutional injuries
were “actually . . . final policy decision[s].” Id. Rather, the injuries Plaintiff alleges—the taking of
her work keys, hostility from coworkers, and verbal abuse from Defendant Flower—all appear to
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result from unofficial actions.24 See id. (noting final policymakers possess “final authority to
establish municipal policy with respect to the action ordered”).
c) 	Ratification of Subordinates
Plaintiff’s claim that final policymakers ratified the decisions of subordinate employees
also fails. Plaintiff offers only conclusory assertions in support of this theory. She does not specify
who the subordinate decisionmakers were, what the decisions were, or whether the subordinates
had been delegated any relevant authority. (See id. at 24, 36, ¶¶ 140, 226.) The Court presumes
that Plaintiff’s ratification claims refer to the Board’s inaction in the face of complaints against
Defendant Flower. (See id. at 24, ¶ 140 (noting Board “ratified the conduct of other County
employees by explicitly encouraging and supporting them”)). But “[r]atification is more than
acquiescence, and a mere failure to discipline does not amount to ratification.” Erickson v. City of
Lakewood, Colo., 489 F. Supp. 3d 1192, 1207 (D. Colo. 2020) (quoting Jack v. Cnty. of Stanislaus,
2017 WL 4123930, at *7 (E.D. Cal. Sep. 15, 2017)). Plaintiff “must allege that the subordinate’s
actions—and the bases for them—were ratified by final policymakers.” Id. Plaintiff fails to do so.
d) 	Failure to Train
“[T]he inadequacy of [government] training may serve as the basis for § 1983 liability only
where the failure to train amounts to deliberate indifference to the rights of persons with whom the
[government officials] come into contact.” Marshall, 640 F. Supp. 3d at 1067 n.24 (second and
third alterations in original) (quoting City of Canton v. Harris, 489 U.S. 378, 388 (1989)).
“However, ‘[a] municipality’s culpability for a deprivation of rights is at its most tenuous where a
24 The one exception may be the denial of cleaning supplies by Commissioner Kevin Day. (Doc.
No. 26 at 13, ¶ 64.) However, nowhere does Plaintiff allege that Day possessed any relevant
policymaking authority that might give way to municipal liability. (See id.)
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claim turns on a failure to train.’” Erickson, 489 F. Supp. 3d at 1207 (quoting Connick v.
Thompson, 563 U.S. 51, 61 (2011)).
Plaintiff describes an atmosphere of fear among employees who experience discrimination,
which she ascribes to a failure to train “HR Director(s) and employees regarding civil rights.”
(Doc. No. 26 at 25, ¶ 145.) But the allegations are conclusory and she does not allege enough
details to demonstrate how her injuries could have been avoided with more training. See Erickson,
489 F. Supp. 3d at 1208 (dismissing claim where defendant failed to set forth facts regarding “how
the individual defendants were trained, who they were trained by, or why their training was
deficient”). Nor does she allege a pattern of similar constitutional violations by untrained
employees, which “is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes of
failure to train.” Connick, 563 U.S. at 62. The Complaint thus fails to establish the existence of a
municipal policy or custom based on a failure to train.
In sum, Plaintiff’s Complaint fails to set forth adequate facts to support her assertion of a
custom or policy of retaliation or discrimination attributable to the Board. For that reason, her
Monell claims is dismissed with prejudice.25
D. Wrongful Termination Claim
“The at-will nature of . . . employment is a matter of public policy;” however, Colorado
has “created exceptions to the employer’s general right to terminate an employee at-will.”
Crawford Rehabilitation Servs., Inc. v. Weissman, 938 P.2d 540, 546 (Colo. 1997). One such
exception is the tort of wrongful termination in violation of public policy. See Martin Marietta
Corp. v. Lorenz, 823 P.2d 100, 104 (Colo. 1992).
25 This claim is dismissed with prejudice for the same reasons explained in n. 19 supra.
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“[A] plaintiff may state a claim for retaliatory discharge in violation of public policy by
alleging that he or she was employed by the defendant; that the defendant discharged him or her,
and that the defendant discharged him or her in retaliation for exercising a job-related right or
performing a specific statutory duty, or that the termination would undermine a clearly expressed
public policy.” Kearl v. Portage Env’t, Inc., 205 P.3d 496, 499 (Colo. App. 2008). Further, a
plaintiff “must also allege that the public policy invoked ‘truly impacts the public in order to justify
interference into an employer’s business decisions.’ ” Id. (quoting Crawford Rehabilitation Servs.,
Inc., 938 P.2d at 552).
Defendants argues that Plaintiff “does not allege which clear mandate of public policy” the
Board violated. (Doc. No. 30 at 20.) Plaintiff responds that she was forced to resign in violation of
Colorado public policy “protect[ing] employees from retaliation for engaging in political activity,
opposing 	unlawful 	conduct, 	and 	reporting 	workplace 	discrimination 	and 	hostile 	work
environment.” (Doc. No. 26 at 38, ¶ 240.) In support, Plaintiff cites Kearl v. Portage
Environmental, Inc., 205 P.3d 496 (Colo. App. 2008). In that case, the Colorado Court of Appeals
recognized that “Colorado has a clearly expressed public policy against terminating an employee
in retaliation for the employee’s good faith attempt to prevent the employer’s participation in
defrauding the government.” Id. at 500 (emphasis added). Plaintiff fails to explain how reporting
workplace discrimination falls within the category of “defrauding the government.” Plaintiff’s
failure to allege an applicable public policy warrants dismissal of her claim. See Corbin v. Sinclair
Mktg., Inc., 684 P.2d 265 (Colo. App. 1984) (affirming dismissal of claim for failure to identify
specific policy); see also Lampe v. Presbyterian Med. Ctr., 590 P.2d 513, 515-16 (Colo. App.
1978) (affirming dismissal of claim citing nonspecific and overly broad policy statement).
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The Court thus dismisses Plaintiff’s claim for wrongful termination in violation of public
policy with prejudice.26
CONCLUSION
For the reasons set forth above, IT IS ORDERED that Defendants’ Motion to Dismiss
Second Amended Complaint [ECF 26], Doc. No. 30, be GRANTED in part and DENIED in
part as follows:
1) 	That Plaintiff’s claims against Defendants Flower and Camper under CADA are
DISMISSED without prejudice;
2) 	That Plaintiff’s Section 1985 claims against Defendants Flower and Camper for
conspiracy to violate civil rights are DISMISSED with prejudice;
3) 	That Plaintiff’s Section 1983 Monell claim against the Board are DISMISSED with
prejudice;
4) 	That Plaintiff’s claim of wrongful termination in violation of Colorado public policy
are DISMISSED with prejudice;
5) 	And that all of Plaintiff’s remaining claims are permitted to proceed.
Dated this 31st day of March, 2026.
BY THE COURT:
___________________________
Maritza Dominguez Braswell
United States Magistrate Judge
26 The Court dismisses this claim with prejudice for the same reasons explained in n.19 supra.
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