Spence v. Three Birds Alliance et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 25-cv-01988-SKC-STV
BERRETTA SPENCE,
Plaintiff,
v.
THREE BIRDS ALLIANCE;
ERNA YOUNG;
MICHELLE MCKAY,
Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Chief Magistrate Judge Scott T. Varholak
This civil action is before the Court on Defendants’ Amended Motion to Dismiss
(the “Motion to Dismiss”) [#55] and Plaintiff’s Motion for Leave to Substitute Revised
Second Amended Complaint (the “Motion to Amend”) [#70] (collectively, the “Motions”).
The Motions have been referred to this Court. 	[##56, 71] 	This Court has carefully
considered the Motions and related briefing, the entire case file, and the applicable case
law, as well as oral argument from January 14, 2026. 	[#75] 	For the following reasons,
the Court respectfully RECOMMENDS that the Motion to Dismiss be GRANTED IN PART
and DENIED IN PART and that the Motion to Amend be DENIED.
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I. 	BACKGROUND1
Plaintiff began employment with Three Birds Alliance (“Three Birds”) on March 18,
2019. [#1 at 6] During her employment, Plaintiff was “denied interviews or consideration
for internal promotions, excluded from team photos, and monitored by a surveillance
camera over [her] desk, which the supervisor controlled remotely from her home.” 	[Id.]
In November 2023, Plaintiff reported a hostile work environment to the Executive Director.
[Id.] Specifically, Plaintiff reported discriminatory treatment, isolation, and exclusion from
team communications. 	[Id.] 	Her complaint was dismissed and referred to the DEI
Facilitator, who failed to respond. [Id.]
In February 2024, Plaintiff learned that her supervisor and a coworker were
“coercing clients to write grievances against [Plaintiff].” [Id.] Plaintiff was not shown the
grievances and was pressured to respond to claims she could not review. [Id.] A client
who refused to write a grievance was “removed . . . from services.” [Id.] On February 7,
2024, Plaintiff reported her concerns to the Board President. [Id.]
As Plaintiff’s mental health declined she requested medical leave. [Id.] The Board
President initially recommended unpaid leave pursuant to the Family and Medical Leave
Act (“FMLA”). [Id.] Later, the Board President offered paid leave “during an investigation.”
[Id.] 	The investigation “appeared one-sided and ignored key witnesses and evidence.”
1 The facts are drawn from the allegations in Plaintiff’s Complaint (the “Complaint”) [#1],
which must be taken as true when considering a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). 	Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir.
2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). The Court does
not consider any additional factual allegations raised by Plaintiff in briefing. 	See In re
Qwest Commc’ns Int’l, Inc., 396 F. Supp. 2d 1178, 1203 (D. Colo. 2004) (disregarding
additional factual claims asserted in briefing on a motion to dismiss, explaining that
“plaintiffs may not effectively amend their Complaint by alleging new facts in their
response to a motion to dismiss”).
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[Id.] Plaintiff was ultimately directed back to Human Resources and terminated on May
7, 2024. [Id.] As a result of her experiences working for Three Birds, Plaintiff experienced
“extreme anxiety, emotional trauma, and exacerbation of an existing medical condition,
requiring ongoing mental health treatment.” [Id. at 7]
Plaintiff initiated this action on June 26, 2025. Liberally construed, the Complaint
brings seven claims: (1) race discrimination under Title VII of the Civil Rights Act of 1964
(“Title VII”); (2) race discrimination in the making and enforcement of a contract in violation
of 42 U.S.C. § 1981; (3) retaliation under Title VII; (4) failure to accommodate a disability
in violation of the Americans with Disabilities Act (“ADA”); (5) disability discrimination in
violation of the ADA, (6) violation of the FMLA; and (7) intentional infliction of emotional
distress (“IIED”). 	[Id. at 4] 	On November 26, 2025, Defendants filed the Motion to
Dismiss. 	[#55] 	Plaintiff has responded to the Motion to Dismiss [#65] and Defendants
have replied [#73]. 	On December 22, 2025, Plaintiff filed her Motion to Amend seeking
to file an Amended Complaint. [#70] Defendant has responded to Plaintiff’s attempts to
amend her Complaint [#67] and Plaintiff has replied [##68, 69].2 On January 14, 2026,
this Court held oral argument on the Motion to Amend and took both the Motion to Amend
and the Motion to Dismiss under advisement. [#75]
II. 	STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 15(a)(2), the Court is to freely allow
amendment of the pleadings “when justice so requires.” 	The grant or denial of an
opportunity to amend is within the discretion of the Court, but “outright refusal to grant the
2 Prior to filing the instant Motion to Amend, Plaintiff had filed an earlier motion to amend
her Complaint [#60] which this Court denied as moot in light of the subsequent Motion to
Amend [#77].
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leave without any justifying reason appearing for the denial is not an exercise of
discretion; it is merely abuse of that discretion and inconsistent with the spirit of the
Federal Rules.” 	Foman v. Davis, 371 U.S. 178, 182 (1962). 	“Refusing leave to amend
[under Rule 15] is generally only justified upon a showing of undue delay, undue prejudice
to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by
amendments previously allowed, or futility of amendment.” 	Frank v. U.S. West, Inc., 3
F.3d 1357, 1365 (10th Cir. 1993).
An amendment is futile “if it would not survive a motion to dismiss.” 	Bituminous
Cas. Corp. v. Hartford Cas. Ins. Co., No. 12-cv-00043-WYD-KLM, 2013 WL 6676157, at
*2 (D. Colo. Dec. 18, 2013) (citing Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir.
2004)). Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In
deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded
factual allegations . . . and view these allegations in the light most favorable to the
plaintiff.” Cassanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v.
United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). 	Nonetheless, a plaintiff may not
rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the
scope of the allegations in a complaint: if they are so general that they encompass a wide
swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims
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across the line from conceivable to plausible.’” 	Robbins v. Oklahoma, 519 F.3d 1242,
1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff
to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she
is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court
is to “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory proposed.”
Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant’s pleadings are to be construed liberally and held to a less
stringent standard than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The
Haines rule applies to all proceedings involving a pro se litigant.” 	Id. at 1110 n.3. 	The
Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525 F.3d
925, 927 n.1 (10th Cir. 2008). 	Moreover, pro se parties must “follow the same rules of
procedure that govern other litigants.” 	Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994) (quotation omitted).
III. 	ANALYSIS
The Motion to Dismiss seeks to dismiss Plaintiff’s Complaint for failure to state a
claim. 	[#55] 	The Motion to Amend seeks leave to file an Amended Complaint and
attaches the proposed Amended Complaint. [#70] The Court begins with the Motion to
Dismiss then turns to the Motion to Amend.
A. 	The Motion to Dismiss
Defendant argues that Plaintiff has failed to plausibly allege any of her claims. [#55
at 4-8] 	Specifically, Defendant maintains that Plaintiff’s claims “are conclusory and
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inadequate to survive a motion to dismiss.” [Id. at 4] The Court addresses each claim in
turn.
1. 	Title VII Race Discrimination
Plaintiff’s first claim alleges race discrimination under Title VII. [#1 at 4] Title VII
creates a cause of action for discrimination based on an individual’s “race, color, religion,
sex, or national origin.” Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 457 (1975)
(quotation omitted). 	Plaintiff can prove a disparate treatment claim “either (1) by direct
evidence that a workplace policy, practice, or decision relies expressly on a protected
characteristic, or (2) by using the burden-shifting framework set forth in [McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)].” Young v. United Parcel Serv., Inc., 575
U.S. 206, 213 (2015).
Here, Plaintiff does not allege any direct evidence of discrimination. [See generally
#1] The Court thus looks to the burden-shifting framework set forth in McDonnell Douglas.
To make a prima facie case under that framework, a plaintiff must show 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. 	Bennett v. Windstream Commc’ns, Inc., 792 F.3d 1261, 1266 (10th Cir.
2015). If the plaintiff makes this showing, then the employer must have an opportunity to
articulate some legitimate, non-discriminatory reason for its action. 	Young, 575 U.S. at
213. If the employer articulates such a reason, then the burden shifts back to the plaintiff
to prove the employer’s proffered reason was pretextual. Id.
“The prima facie case under McDonnell Douglas, however, is an evidentiary
standard, not a pleading requirement.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510
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(2002). 	As the Supreme Court explained, “under a notice pleading system, it is not
appropriate to require a plaintiff to plead facts establishing a prima facie case because
the McDonnell Douglas framework does not apply in every employment discrimination
case”—e.g., where a plaintiff is able to produce direct evidence of discrimination. Id. at
511. The Supreme Court further cautioned that “the precise requirements of a prima facie
case can vary depending on the context” and thus “it may be difficult to define the precise
formulation of the required prima facie case in a particular case” before “discovery has
unearthed relevant facts and evidence.” Id. at 512.
But although a plaintiff 	is not required to set forth a prima facie 	case of
discrimination in the complaint, “she is required to set forth plausible claims.” 	Khalik v.
United Air Lines, 671 F.3d 1188, 1193 (10th Cir. 2012). The plaintiff may not merely rely
upon “the type of conclusory and formulaic recitations disregarded by the Court in Iqbal.”
Id. 	“While specific facts are not necessary, [] some facts are.” 	Id. (quotation omitted).
Moreover, although the plaintiff is not required to allege a prima facie case, “[t]he
inferences offered by the McDonnell Douglas framework assist judges in resolving
motions to dismiss by providing an analytical framework to sift through the facts alleged.”
Morman v. Campbell Cnty. Mem’l Hosp., 632 F. App’x 927, 933 (10th Cir. 2015); see also
Khalik, 671 F.3d at 1192 (explaining that “the elements of each alleged cause of action
help to determine whether [the plaintiff] has set forth a plausible claim”).
Here, though Plaintiff alleges an adverse employment action—she alleges that she
was terminated—she does not plausibly plead that her termination was racially motivated.
Plaintiff does not allege her race or the race of any of her supervisors or co-workers. [#1]
Nor does Plaintiff provide the grounds given to her for her termination, let alone plead
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facts demonstrating that such grounds were implausible. 	Indeed, the only mention of
race in the Complaint is a single statement that Plaintiff reported “racially discriminatory
treatment” 	to 	the 	Executive 	Director 	in 	November 	2023—six 	months 	before 	her
termination—but no further description of this treatment is provided nor is there any
explanation for why Plaintiff believed the treatment was racially discriminatory. [Id. at 6]
Thus, as to her Title VII race discrimination claim, Plaintiff merely pleads the type of
conclusory recitations that do not plausibly allege a claim. 	Accordingly, the Court
respectfully RECOMMENDS that the Motion to Dismiss be GRANTED with respect to
Plaintiff’s Title VII race discrimination claim.
2. 	Section 1981 Race Discrimination
Next, Plaintiff asserts race discrimination in the formation and enforcement of a
contract, in violation of 42 U.S.C. § 1981. 	[Id. at 4] 	“Section 1981 establishes four
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). 	To establish a prima facie case of
discrimination under Section 1981, a plaintiff must establish: “(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)).
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Here, Plaintiff’s Section 1981 claim fails for the same reason that Plaintiff’s Title
VII claim fails—Plaintiff fails to plausibly allege that any Defendant interfered with
Plaintiff’s employment contract (or any other contract) because of her race. Once again,
Plaintiff does not allege her own race, or the race of any of her supervisors or co-workers.
[#1] And other than the one conclusory statement, Plaintiff does not allege that anybody
took actions against her because of her race. 	As a result, Plaintiff has not plausibly
alleged a Section 1981 race discrimination claim. 	Accordingly, the Court respectfully
RECOMMENDS that the Motion to Dismiss be GRANTED with respect to Plaintiff’s
Section 1981 claim.
3. 	Title VII retaliation
Next, Plaintiff brings a claim for Title VII retaliation. 	[#1 at 4] 	Title VII makes it
unlawful to retaliate against an employee for opposing employment practices made
unlawful by the statute. 42 U.S.C. § 2000e-3(a). To prevail on a Title VII retaliation claim,
a plaintiff must establish “that retaliation played a motivating part in the adverse
employment decision.” Hansen v. SkyWest Airlines, 844 F.3d 914, 925 (10th Cir. 2016)
(quotation omitted). 	“If the plaintiff can prove that retaliatory animus was a motivating
factor, the burden then shifts to the employer to demonstrate that it would have taken the
same action absent the retaliatory motive.” Id.
Alternatively, 	a 	plaintiff 	may 	proceed 	under 	the 	burden-shifting 	framework
established by McDonnell Douglas.3 	Id. 	Under that framework, “the plaintiff must first
3 Again, the prima facie case under McDonnell Douglas is an evidentiary standard, not a
pleading requirement. Swierkiewicz, 534 U.S. at 510. But, while a plaintiff is not required
to set forth a prima facie case of discrimination in the complaint, she is required to set
forth plausible claims. 	Khalik, 671 F.3d at 1193. 	Moreover, although the plaintiff is not
required to allege a prima facie case, “[t]he inferences offered by the McDonnell Douglas
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establish a prima facie case of retaliation by showing (1) that she engaged in protected
opposition to discrimination, (2) that a reasonable employee would have found the
challenged action materially adverse, and (3) that a causal connection exists between the
protected activity and the materially adverse action.” Id. (quotations omitted). Once the
plaintiff asserts a prima facie case, the burden shifts to the employer to proffer a
legitimate, non-retaliatory rationale for the materially adverse action. Id. If the employer
does so, then the plaintiff must show that the “proffered rationale is pretextual.” 	Id.
(quotations omitted).
Here, the only Title VII protected activity Plaintiff is alleged to have engaged in was
reporting a hostile work environment to the Executive Director, which included citing
racially discriminatory treatment. [#1 at 6] Plaintiff does not allege that Defendants took
any adverse action in the immediate aftermath of this report. [Id.] Three months later, in
February 2024, Plaintiff allegedly learned that her supervisor and a coworker were
coercing clients to write grievances about Plaintiff, but Plaintiff does not allege that the
coworker or supervisor were even aware of Plaintiff’s complaint to the Executive Director.
[Id.] And six months after the Complaint, Plaintiff was terminated. [Id.] This three-month
and six-month time frames, standing alone, are insufficient to give rise to a causal
inference of retaliation. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir.
1999) (stating that a three-month period, standing alone, was too long for a fact-finder to
infer causation); see also Proctor v. United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir.
2007) (“[f]our months is too large a time gap to establish a causal connection”). And
framework assist judges in resolving motions to dismiss by providing an analytical
framework to sift through the facts alleged.” Morman, 632 F. App’x at 933.
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beyond the temporal proximity, there is nothing in the Complaint that could plausibly allow
the conclusion that Defendants retaliated against Plaintiff for her complaint to the
Executive Director. Accordingly, Plaintiff has failed to plausibly allege a Title VII retaliation
claim 	and 	the 	Court 	respectfully 	RECOMMENDS 	that 	the 	Motion 	to 	Dismiss 	be
GRANTED with respect to Plaintiff’s Title VII retaliation claim.
4. 	ADA Failure to Accommodate
Plaintiff next alleges an ADA failure to accommodate claim. [#1 at 4] A failure to
accommodate claim is evaluated under “a modified McDonnell-Douglas burden-shifting
framework.” Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1204 (10th Cir. 2018). “Under the
first step of the modified framework, a plaintiff must demonstrate that ‘(1) [she] is disabled;
(2) 	[she] 	is 	otherwise 	qualified; 	and 	(3) 	[she] 	requested 	a 	plausibly 	reasonable
accommodation.’” 	Id. (quoting Punt v. Kelly Servs., 862 F.3d 1040, 1050 (10th Cir.
2017)). Here, Plaintiff has failed to plausibly allege the first and third elements of a failure
to accommodate claim, and has failed to otherwise plead facts from which the Court can
plausibly infer that Defendants failed to accommodate Plaintiff in violation of the ADA.
“The 	ADA 	defines 	‘disability’ 	as 	‘(A) 	a 	physical 	or 	mental 	impairment 	that
substantially limits one or more of the major life activities of such individual; (B) a record
of such an impairment; or (C) being regarded as having such an impairment.’” Kellogg v.
Energy Safety Servs. Inc., 544 F.3d 1121, 1124 (10th Cir. 2008) (quoting 42 U.S.C. §
12102(2)); see also Scavetta v. Dillon Cos., Inc., 569 F. App'x 622, 624 (10th Cir. 2014)
(“To satisfy the ADA's definition of disability, a plaintiff must (1) have a recognized
impairment, (2) identify one or more appropriate major life activities, and (3) show [that]
the impairment substantially limits one or more of those activities.” (quotation omitted)).
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Here, Plaintiff has not alleged any facts from which the Court can plausibly infer that
Plaintiff has a physical or mental impairment that substantially limits one or more of her
major life activities, that she has a record of such impairment, or that she is regarded as
having such an impairment.4 	Plaintiff generally alleges a decline in her mental health,
but does not provide details about any mental health disorder that she suffered from or
how her declining mental health substantially limited one or more of her major life
activities. Thus, she has failed to plausibly allege the first element of her ADA failure to
accommodate claim. See, e.g., Johnson v. Sedgwick Cnty. Sheriff's Dep't, 461 F. App'x
756, 759 (10th Cir. 2012) (“For [the plaintiff's] ADHD to have been a disability under the
ADA, it must have substantially limit[ed] one or more of [his] major life activities.”
(quotation omitted)); Russell v. Phillips 66 Co., 184 F. Supp. 3d 1258, 1268 (N.D. Okla.
2016) (“Depression, anxiety, and ADHD are not per se disabilities, and merely stating that
he/she has received a diagnosis of one of these conditions does not establish that a
plaintiff is disabled under the ADA.”), aff'd, 687 F. App'x 748 (10th Cir. 2017); Castaneda
v. City of Albuquerque, 276 F. Supp. 3d 1152, 1180 (D.N.M. 2016); see also Beebe v.
Colorado, No. 18-CV-01357-CMA-KMT, 2019 WL 6255763, at *4 (D. Colo. Nov. 22, 2019)
(explaining that “the Tenth Circuit does not recognize a per se disability in ADA cases”
because the ADA “requires an individualized assessment to determine whether an
impairment substantially limits a major life activity” (quotation omitted)); Kahler v. Leggitt,
4 “In the Tenth Circuit, a person is regarded as disabled when ‘(1) a covered entity
mistakenly believes that a person has a physical impairment that substantially limits one
or more major life activities, or (2) a covered entity mistakenly believes that an actual,
nonlimiting impairment substantially limits one or more major life activities.’” 	Russell v.
Phillips 66 Co., 184 F. Supp. 3d 1258, 1270 (N.D. Okla. 2016) (quoting Johnson v. Weld
Cnty., 594 F.3d 1202, 1219 (10th Cir. 2010)), aff'd, 687 F. App'x 748 (10th Cir. 2017).
Plaintiff does not allege that she was “regarded as disabled” by Defendants. [#1]
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No. 	18-CV-03162-WJM-KMT, 	2019 	WL 	5104775, 	at 	*7 	(D. 	Colo. 	May 	3, 	2019)
(recommending dismissal of an ADA claim, in part, because the plaintiff failed to allege
how her alleged disabilities impacted her daily life activities), report and recommendation
adopted, 2019 WL 3928622 (D. Colo. Aug. 20, 2019).
Similarly, Plaintiff has failed to plausibly allege that she requested a reasonable
accommodation. Lincoln, 900 F.3d at 1204. Plaintiff does not allege that she requested
any accommodation from Defendants. 	[#1] 	And it appears Defendants may have
considered an accommodation, as the Board President recommended that Plaintiff take
FMLA leave. [Id. at 6] In any event, however, Plaintiff has not alleged that she requested
a reasonable accommodation that Defendants denied. Thus, she has not pled the third
element of her ADA accommodation claim.
Thus, Plaintiff has failed to plausibly allege the first or third elements of her ADA
failure to accommodate claim. 	Accordingly, the Court respectfully RECOMMENDS that
the Motion to Dismiss be GRANTED to the extent it seeks to dismiss Plaintiff’s ADA failure
to accommodate claim.
5. 	ADA Disability Discrimination Claim
Next, Plaintiff alleges disability discrimination in violation of the ADA. [#1 at 4] Title
I of the ADA prohibits employers from discriminating against employees on the basis of a
disability. 42 U.S.C. § 12112(a). “To establish a prima facie case of discrimination under
the ADA, an employee must show: (1) she is disabled within the meaning of the ADA; (2)
she is qualified, with or without reasonable accommodation, to perform the essential
functions of the job held or desired; and (3) she was discriminated against because of her
disability.” Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1118 (10th Cir. 2004).
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Here, as outlined above, Plaintiff has not plausibly alleged a disability within the
meaning of the ADA, a fact which by itself dooms Plaintiff’s ADA discrimination claim as
it is currently pled. In addition, Plaintiff has not plausibly alleged that she was qualified,
with or without reasonable accommodation, to perform the essential functions of the job—
indeed, she seems to suggest that she was not able to perform such functions by the end
of her employment [#1 at 6]—or that Defendants discriminated against Plaintiff because
of her disability. Thus, Plaintiff has not plausibly alleged any of the elements of her ADA
discrimination claim. Accordingly, the Court respectfully RECOMMENDS that the Motion
to Dismiss be GRANTED with respect to Plaintiff’s ADA disability discrimination claim.
6. 	FMLA Claim
Plaintiff next asserts an FMLA claim. 	[#1 at 4] 	The FMLA entitles a qualified
employee up to 12 weeks of leave during any 12-month period “[b]ecause of a serious
health condition that makes the employee unable to perform the functions of the position
of such employee.” 	29 U.S.C. § 2612(a)(1)(D). 	With certain exceptions, an “eligible
employee” is defined as an employee who has been employed for at least twelve months
and worked at least 1,250 hours for the employer with whom leave is requested. 	29
U.S.C. § 2611(2)(A). The term “serious health condition” is defined as “an illness, injury,
impairment, or physical or mental condition that involves—(A) inpatient care in a hospital,
hospice, or residential medical care facility; or (B) continuing treatment by a health care
provider.” 29 U.S.C. § 2611(11).
The FMLA makes it unlawful for any covered employer “to interfere with, restrain,
or deny the exercise of or the attempt to exercise, any right provided under [the FMLA].”
29 U.S.C. § 2615(a)(1). “To make out a prima facie claim for FMLA interference, a plaintiff
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must establish (1) that he was entitled to FMLA leave, (2) that some adverse action by
the employer interfered with his right to take FMLA leave, and (3) that the employer’s
action was related to the exercise or attempted exercise of his FMLA rights.” 	Jones v.
Denver Pub. Sch., 427 F.3d 1315, 1319 (10th Cir. 2005).
Here, beyond generally asserting that Plaintiff has failed to plead her claims, the
Motion to Dismiss does not address the sufficiency of Plaintiff’s FMLA claim. [#55] And
without targeted briefing on the issue, the Court is not inclined to sua sponte analyze
whether Plaintiff has plausibly pled her FMLA claim. Indeed, Plaintiff does assert that she
was receiving medical treatment and that she requested medical leave. 	[#1 at 6] 	And
while the Board President recommended Plaintiff receive FMLA leave, Plaintiff was
subsequently terminated. [Id.] Based upon these facts, and without any briefing targeting
Plaintiff’s FMLA claim, the Court declines to sua sponte recommend dismissal of that
claim. 	Accordingly, the Court respectfully RECOMMENDS that the Motion be DENIED
with respect to Plaintiff’s FMLA claim.
7. 	IIED Claim
Finally, Plaintiff brings a claim for IIED. 	[#1 at 4] 	In Colorado, “[t]he elements of
the tort of intentional infliction of emotional distress, otherwise known as ‘outrageous
conduct,’ are (1) the defendant engaged in extreme and outrageous conduct; (2)
recklessly or with the intent of causing the plaintiff severe emotional distress; (3) causing
the plaintiff to suffer severe emotional distress.” Lee v. Colo. Times, Inc., 222 P.3d 957,
966-67 (Colo. App. 2009) (Dailey, J., concurring in part and dissenting in part) (citing
Pearson v. Kancilia, 70 P.3d 594, 597 (Colo. App. 2003)); Coors Brewing Co. v. Floyd,
978 P.2d 663, 666 (Colo. 1999). Outrageous conduct has been defined as conduct:
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[S]o outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community. Generally, the case is one in which the
recitation of the facts to an average member of the community would arouse
his resentment against the actor, and him to exclaim, “Outrageous!”
Churchey v. Adolph Coors Co., 759 P.2d 1336, 1350 (Colo. 1988) (quoting Rugg v.
McCarty, 476 P.2d 753, 756 (Colo. 1970)).
Here, Defendants do not challenge the plausibility of Plaintiff’s IIED claim. 	[#55]
Instead, Defendants argue that Plaintiff has not exhausted this claim because it was not
included in the EEOC charge. [Id. at 9-10] But “[u]nlike [Plaintiff’s] Title VII [and] ADA . .
. claims, the IIED claim does not require administrative exhaustion.” 	Karupaiyan v.
Experis IT, No. 21 Civ. 4675 (LGS), 2022 WL 4280529, at *4 (S.D.N.Y. Sept. 15, 2022).
And since exhaustion is the only challenge Defendants make to the IIED claim, the Court
respectfully RECOMMENDS that the Motion to Dismiss be DENIED to the extent it seeks
to dismiss Plaintiff’s IIED claim.
8. 	Conclusion
Thus, for the reasons detailed above, the Court respectfully RECOMMENDS that
the Motion to Dismiss be GRANTED to the extent it seeks to dismiss Plaintiff’s Title VII
race discrimination claim, Section 1981 race discrimination claim, Title VII retaliation
claim, ADA failure to accommodate claim, and ADA disability discrimination claim, but
DENIED to the extent it seeks to dismiss Plaintiff’s FMLA and IIED claims.
B. 	The Motion to Amend
Through the Motion to Amend, Plaintiff seeks to file an Amended Complaint
naming five additional Defendants. [#70-1] In the Amended Complaint, Plaintiff reasserts
all 	the 	claims 	included 	in 	her 	operative 	Complaint 	aside 	from 	a 	Section 	1981
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discrimination claim. [Id.] Plaintiff also seeks to add claims for ADA retaliation, violation
of the Colorado Family and Medical Leave Insurance (“FAMLI”) Act, defamation, wrongful
termination in violation of public policy, and negligent supervision and retention. [Id.] And
the proposed Amended Complaint does add some additional facts not included in the
operative Complaint. 	[Id.] 	For example, it identifies Plaintiff as a Black woman with
disabilities which include PTSD, anxiety, and depression. [#70-1 at ¶ 2] But while those
additions improve on the operative Complaint, in many ways the proposed Amended
Complaint is worse than the operative Complaint. 	Other than identifying Plaintiff and
Defendants, the proposed Amended Complaint is nearly devoid of any other facts.
Rather, 	the 	proposed 	Amended 	Complaint 	consists 	almost 	entirely 	of 	conclusory
statements that parrot the elements of an offense. 	[See, e.g., id. at ¶¶ 21 (stating that
Plaintiff requested “reasonable accommodations and medical leave” without identifying
the 	reasonable 	accommodations 	requested); 	22 	(stating 	that 	Plaintiff 	reported
discriminatory treatment and a hostile work environment without describing the nature of
the discriminatory treatment or hostile environment); 25 (alleging that Defendant Three
Birds failed to engage in good faith in the ADA interactive process without describing how
it failed to participate in good faith); 28 (asserting that the individual Defendants made
“false and misleading statements” to an investigator without describing what was false or
misleading about the statements)] This is the type of “formulaic recitation of the elements
of a cause of action [that] will not do [to state a claim].” Twombly, 550 U.S. at 555. Thus,
because the proposed Amended Complaint would not survive a motion to dismiss,
amendment would be futile. 	Bituminous Cas. Corp., 2013 WL 6676157, at *2 (citing
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Bradley, 379 F.3d at 901). 	Accordingly, the Court respectfully RECOMMENDS that the
Motion to Amend be DENIED.
IV. 	CONCLUSION
For the reasons set forth above, the Court respectfully RECOMMENDS that: (1)
Defendants’ Amended Motion to Dismiss [#55] be GRANTED to the extent it seeks to
dismiss Plaintiff’s Title VII race discrimination claim, Section 1981 race discrimination
claim, Title VII retaliation claim, ADA failure to accommodate claim, and ADA disability
discrimination claim, but DENIED to the extent it seeks to dismiss Plaintiff’s FMLA and
IIED claims, and (2) Plaintiff’s Motion for Leave to Substitute Revised Second Amended
Complaint [#70] be DENIED.5
5 Within fourteen days after service of a copy of the Recommendation, any party may
serve and file written objections to the magistrate judge’s proposed findings and
recommendations with the Clerk of the United States District Court for the District of
Colorado. 	28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583
(10th Cir. 1995). A general objection that does not put the district court on notice of the
basis for the objection will not preserve the objection for de novo review. 	“[A] party’s
objections to the magistrate judge’s report and recommendation must be both timely and
specific to preserve an issue for de novo review by the district court or for appellate
review.” 	United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996).
Failure to make timely objections may bar de novo review by the district judge of the
magistrate judge’s proposed findings and recommendations and will result in a waiver of
the right to appeal from a judgment of the district court based on the proposed findings
and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-
80 (10th Cir. 1999) (concluding that district court’s decision to review a magistrate judge’s
recommendation de novo despite the lack of an objection does not preclude application
of the “firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyoming Coal Refining Sys., Inc.,
52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate
judge’s order, cross-claimant had waived its right to appeal those portions of the ruling);
Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived
their right to appeal the magistrate judge’s ruling by failing to file objections). 	But see,
Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver
rule does not apply when the interests of justice require review).
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DATED: January 21, 2026 	BY THE COURT:
s/Scott T. Varholak__________
Chief United States Magistrate Judge
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