Grisson v. PeopleReady et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 24-cv-02762-SKC-KAS
ANTOINE GRISSON,
Plaintiff,
v.
PEOPLEREADY,
PAM GAMBOA,
SHAWN BRUCHELLA, also known as Shawn Buchalla, and
FRONTIER FERTILIZER,
Defendants.
______________________________________________________________________________
ORDER ON MOTIONS TO DISMISS (Dkt. 18, 34, 34-1)
______________________________________________________________________________
This matter is before the Court on Defendant Frontier Fertilizer and Chemical
Co.’s Motion to Dismiss (Dkt. 18 (“Frontier’s Motion”) and Defendants PeopleReady,
Inc., 	Shawn 	Buchalla, 	and 	Pam 	Gamboa’s 	Motion 	to 	Dismiss 	(Dkt. 	34) 	and
Memorandum in Support of Defendants’ Motion to Dismiss for Failure to State a
Claim (Dkt. 34-1) (“PeopleReady Defendants’ Motion”). Plaintiff Antoine Grisson filed
Responses (Dkt. 25, 37), respectively, in opposition to these Motions, and Defendants
filed Replies (Dkt. 30, 39). The Court has reviewed the briefing, the entire case file,
and the applicable law. For the following reasons, the Motions (Dkt. 18, 34) are
granted and Plaintiff’s Second Amended Complaint (Dkt. 8) is dismissed without
prejudice.
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I. 	Background
This 	employment 	discrimination 	lawsuit 	arises 	from 	pro 	se 	Plaintiff’s
employment with Defendant PeopleReady, a temporary staffing agency, which placed
him at jobs with Defendant Frontier Fertilizer. Plaintiff, who is African American
and has a learning disorder and bipolar disorder, alleges that both corporate
Defendants engaged in “discriminatory wage practices” by “coordinat[ing] to pay
[him] lower wages than non[-]protected workers for [the] same work.” Dkt. 8 at pp.6-
7.
His employment with PeopleReady as a laborer began on March 25, 2021. Id.
at 9. Around July 4, 2023, Plaintiff complained to PeopleReady’s human resources
department about branch manager1 Buchalla’s purportedly discriminatory practice
of removing Plaintiff from jobs in retaliation for Plaintiff’s complaints about Buchalla.
Id. Plaintiff alleges that “similar[ly] situated employees who are not members of
Plaintiff[’s] protected class [were] treated more favorably” by being given “more job
opportunities” “better pay,” “overtime opportunities,” and “health benefits.” Id. at p.9.
Plaintiff also complained to Frontier Fertilizer’s human resources department about
the incorrect pay he received for his work. Id.
He further alleges, without supporting factual allegations, that both corporate
Defendants 	“manipulated 	time 	records,” 	“failed 	to 	pay 	for 	all 	hours 	worked,”
1 See Dkt. 8-1 at pp.2 n.3 (identifying Shawn Buchalla as PeopleReady’s “Branch
Manager”).
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“misclassified [Plaintiff’s] work duties to justify lower pay,” “failed to process wage
correction,” “denied proper job classification,” “created dual time-keeping records,”
and “denied proper meals and rest breaks.” Id. at p.7. Plaintiff also alleges, again
without supporting factual allegations, that Defendant Buchalla “directed better
paying jobs to non-protected workers,” “manipulated time records,” “denied overtime
opportunities,” “made derogatory discriminat[ory] statements towards Plaintiff,”
“retaliated against wage and discrimination complaint,” and “failed to process wage
correction.” Id. at p.8. Defendant Gamboa allegedly “advised denying [Plaintiff’s]
valid wage claim,” “dismissed documented wage violation,” “facilitated retaliatory
response to wage and discrimination complaint,” and “failed to ensure compliance
with all applicable state and federal laws.” Id.
As a result of the alleged conduct, Plaintiff asserts the following claims:2 (1)
discrimination based on a conviction record in violation of Title VII of the Civil Rights
Act of 1964 and the Colorado Anti-Discrimination Act (“CADA”); (2) retaliation in
violation of Title VII and CADA; (3) violation of the Fair Credit Reporting Act; (4)
violation of the Colorado Consumer Credit Reporting Act; (5) defamation against
Defendant Buchalla; (6) intentional infliction of emotional distress; and (7) negligent
hiring and retention against PeopleReady. Id. at pp.10-13.
Finally, Plaintiff represents that he exhausted administrative remedies by
“fil[ing] charges of discrimination alleging race, color, and origin discrimination and
2 Unless otherwise noted, the claims are asserted against all Defendants.
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retaliation” under Title VII and CADA with the Equal Employment Opportunity
Commission and the Colorado Civil Rights Division. Id.
Defendants seek dismissal under Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) on grounds that Plaintiff failed to exhaust his administrative remedies and
he has failed to state actionable claims.
II. Legal Standards
A. 	Pro Se Plaintiff
Plaintiff is proceeding pro se. The Court, therefore, “review[s] his pleadings
and other papers liberally and hold[s] them to a less stringent standard than those
drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir.
2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a
plaintiff can prove facts that have not been alleged, or that a defendant has violated
laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not “supply additional
factual allegations to round out a plaintiff’s complaint”).
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B. 	Federal Rule of Civil Procedure 12(b)(1)
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a
complaint for lack of subject matter jurisdiction. F ED. R. CIV. P. 12(b)(1). Dismissal
under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case. Rather, it
calls for a determination that the court lacks authority to adjudicate the matter,
attacking the existence of jurisdiction rather than the allegations of the complaint.
See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (federal courts are courts
of limited jurisdiction and may only exercise jurisdiction when specifically authorized
to do so). The burden of establishing subject matter jurisdiction is on the party
asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974). A court lacking jurisdiction “must dismiss the cause at any stage of the
proceedings in which it becomes apparent that jurisdiction is lacking.” Id. at 909. The
dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218
(10th Cir. 2006).
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of
fact 	in 	the 	complaint, 	without 	regard 	to 	mere 	conclusionary 	allegations 	of
jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When
considering a Rule 12(b)(1) motion, however, a court may consider matters outside
the pleadings without transforming the motion into one for summary judgment. Holt
v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). If a party challenges the facts
upon which subject matter jurisdiction depends, a court may not presume the
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truthfulness of the complaint’s “factual allegations . . . [and it] has wide discretion to
allow affidavits, other documents, and [may even hold] a limited evidentiary hearing
to resolve disputed jurisdictional facts under Rule 12(b)(1).” Id.
C. 	Federal Rule of Civil Procedure 12(b)(6)
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.” F ED.
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) (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, 935 F.2d at 1109. “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 Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678. Plausibility, in the context of a motion to dismiss, means that the plaintiff
pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Finally, a plaintiff may not raise
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new allegations in response to a motion to dismiss to bolster a complaint subject to
Rule 12(b)(6) attack. See Smith v. Pizza Hunt, Inc., 694 F. Supp. 2d 1227, 1230 (D.
Colo. 2010).
III. 	Analysis
A. 	Frontier Fertilizer’s Motion to Dismiss (Dkt. 18)
1. 	Exhaustion of Administrative Remedies: Title VII and CADA
Claims (Claims 1 and 2)
Frontier Fertilizer seeks dismissal of the Title VII and CADA claims because
Plaintiff failed to exhaust administrative remedies as to those claims asserted against
it. (Dkt. 18 at pp.4-7). In support, Frontier Fertilizer points to the CCRD’s Notice of
Determination (Dkt. 8-1) (“CCRD’s Notice”), which was filed with the operative
complaint. Id.
a. 	Title VII Exhaustion
A timely administrative charge is a prerequisite to asserting Title VII and
CADA claims in the District Court. See 42 U.S.C. § 2000e-5(e)(1) (Title VII); COLO.
REV . STAT . § 24-34-306(14) (CADA). A complainant must file a formal charge within
300 days after the alleged unlawful employment practice occurred. 42 U.S.C. § 2000e-
5(e)(1). Under the Tenth Circuit’s decision in Lincoln v. BNSF Railway Company,
exhaustion of administrative remedies is not a jurisdictional pre-requisite to a Title
VII action. Lincoln, 900 F.3d 1166, 1185 n.10 (10th Cir. 2018). Thus, “a plaintiff’s
failure to file an EEOC charge regarding a discrete employment incident . . . does not
bar a federal court from assuming jurisdiction over a claim.” Id. at 1183-85. Instead,
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a failure to exhaust a Title VII claim is considered an affirmative defense. See Payan
v. United Parcel Serv., 905 F.3d 1162, 1169 (10th Cir. 2018). Thus, the Court
construes Frontier’s Motion as raising an affirmative defense of failure to exhaust.
See Lincoln, 900 F.3d at 1185. The affirmative defense of 	failure to exhaust
administrative remedies is appropriate in a motion to dismiss if “the grounds for the
defense appear on the face of the complaint.” Cirocco v. McMahon, 768 F. App’x 854,
858 (10th Cir. 2019) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
CCRD’s Notice identifies only one respondent, PeopleReady, and discusses the
allegations against PeopleReady and its defenses. Dkt. 8-1 at pp.1-2. CCRD’s Notice
also identifies the individuals the CCRD interviewed as part of its investigation into
Plaintiff’s Title VII and CADA claims. Id. at p.2. None of the interviewees were
Frontier Fertilizer employees or former employees. Id. (listing Plaintiff, PeopleReady,
and two former PeopleReady employees). Neither Frontier Fertilizer nor any of its
employees are mentioned anywhere in the CCRD’s Notice. Finally, the CCRD’s Notice
advises Plaintiff of his deadline to commence a civil litigation “based on the alleged
discriminatory or unfair practice that was the subject of the charge filed with the
[CCRD].” Id.
Plaintiff argues, however, that he “did name Frontier Fertilizer in his initial
complaint,” and the “failure to list Frontier in the right to sue letter was an error by
the agency, not [by him].” Dkt. 25 at p.3. In support he cites Exhibit A to his Response,
which is purportedly his “Formal Complaint to the CCRD for Mishandling of
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Investigation.” Id. at pp.7-9. However, that is neither the Charge of Discrimination
filed with the CCRD nor Plaintiff’s discrimination complaint filed with the CCRD.
That “formal complaint,” rather, concerns Plaintiff’s “formal grievance regarding the
investigation into” the discrimination complaint he “filed with [the EEOC] but
investigated by [the CCRD].” Id. at p.8. Nevertheless, Plaintiff does not mention
Frontier Fertilizer or any of its employees anywhere in that document.
Exhibit B to Plaintiff’s Response also does not support Plaintiff’s argument.
See Dkt. 25 at pp. 11-13. That exhibit is the “CCRD Interview Record of Sean
Buchalla 	[PeopleReady’s 	branch 	manager] 	dated 	6/13/2024.” 	Id. 	at 	p.10. 	The
interview notes also reflect that PeopleReady was the sole respondent in the CCRD
proceedings, 	that 	PeopleReady 	placed 	Plaintiff 	at 	temporary 	job 	sites, 	that
PeopleReady controlled whether to give Plaintiff and other employees “show-up” pay
when they were released from job assignments soon after arriving at the job site, and
that Defendant Buchalla ran a background check on Plaintiff as part of PeopleReady’s
job placement process. Id. at pp.11-12. In sum, neither Exhibit A nor Exhibit B
support Plaintiff’s argument that Frontier Fertilizer’s absence from the CCRD
proceedings and omission from the CCRD Notice was CCRD’s fault.
Next, Plaintiff relies on Romero v. Union Pacific Railroad, 615 F.2d 1303 (10th
Cir. 1980) for the proposition that “claims against parties not named in a charge [may
proceed], where there was actual notice and a clear relationship between entities.”
Id. at p.3. While the Tenth Circuit agreed with other courts “that the omission of a
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party’s name from the EEOC charge does not automatically mandate dismissal of a
subsequent action under Title VII,” the court adopted four factors to evaluate that
omission and noted that “additional factors may be relevant.” Romero, 615 F.2d at
1311-12. Those four factors are: (1) “whether the role of the unnamed party could
through reasonable effort by the complainant be ascertained at the time of the filing
of the EEOC complaint;” (2) “whether, under the circumstances, the interests of a
named are so similar as the unnamed party’s that for the purpose of obtaining
voluntary conciliation and compliance it would be unnecessary to include the
unnamed party in the EEOC proceedings;” (3) “whether its absence from the EEOC
proceedings resulted in actual prejudice to the interests of the unnamed party;” and
(4) “whether the unnamed party has in some way represented to the complainant that
its relationship with the complainant is to be through the named party.” Id. at 1312
(citation omitted).
Though Plaintiff relies on Romero, he discusses only one factor: prejudice. Dkt.
25 at p.3 (claiming no prejudice because “Frontier exercised direct control over
[P]laintiff[’]s work condition, hours, and discipline through its supervisors.”). In reply,
Frontier Fertilizer argues that it incurred actual prejudice because it “was deprived
of the opportunity to preserve documents as a result of being excluded from the EEOC
process.” Dkt. 30 at p.10. This alone is grounds to find that Romero does not save
Plaintiff’s Title VII claims from dismissal. Because Plaintiff does not address the
other Romero factors, the Court declines to do so on his behalf. See Hill v. Ciolli, No.
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23-cv-02539-CNS-KAS, 2024 WL 4333367, at *4 (D. Colo. Sept. 27, 2024) (“While
courts must liberally construe the filings of a pro se plaintiff, they should not be the
pro se litigant’s advocate or ‘supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on the plaintiff’s behalf.”) (italics
omitted) (quoting Whitney, 113 F.3d at 1175).
Plaintiff 	next 	argues 	that 	Frontier 	Fertilizer’s 	absence 	from 	the 	CCRD
proceedings does not warrant dismissal of his claims against it because it is “a joint
employer” with PeopleReady. Id. at 3. In support, he cites Knitter v. Corvalis Military
Living, LLC, 758 F.3d 1214 (10th Cir. 2014) and Browning-Ferris Industries of
California, Inc. v. NLRB, 911 F.3d 1195 (D.C. Cir. 2018). Id. However, neither case
supports Plaintiff’s argument because neither case concerned a failure to exhaust
administrative remedies. In Knitter, the joint employer test arose in the context of a
plaintiff’s quest to hold two entities liable for a purported Title VII violation. See
Knitter, 	758 	F.3d 	at 	1218, 	1226, 	1228-31 	(affirming 	a 	property 	management
company’s dismissal upon finding the joint employer doctrine did not render it an
employer of a plaintiff who performed handyman services under contract between the
property management company and a handyman company). In Browning-Ferris
Industries, the joint employer test arose in the context of a local union’s petition to
represent workers at a recycling plant who worked under contract between the
recycling plant and a temporary labor services agency. See Browning-Ferris Indus.,
911 F.3d at 1199.
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The Court therefore finds that the joint employer theory does not save
Plaintiff’s Title VII claims against Frontier Fertilizer from dismissal for failure to
exhaust.
b. 	CADA Exhaustion
Though a failure to exhaust is not jurisdictional under Title VII, it is under
CADA. See COLO. REV. STAT . § 24-34-306(14) (“No person may file a civil action in
district court based on an alleged discriminatory or unfair practice . . . without first
exhausting 	the 	proceedings 	and 	remedies 	available”). 	“To 	properly 	exhaust
administrative remedies under CADA, a plaintiff must file a timely charge of
discrimination with the CCRD.” Holsome v. Tek-Experts (Colorado), Inc., No. 22-cv-
00092-DDD-MDB, 2023 WL 2242502, at *3 (D. Colo. Feb. 27, 2023) (citing COLO. REV .
STAT . § 24-34-306(1)(a)).
Here, Frontier Fertilizer lodges a factual attack on the Court’s subject matter;
therefore, the Court may consider material outside the Complaint’s allegations. See
Johnson v. SSA Group LLC, No. 25-cv-00860-PAB-TPO, 2026 WL 100548, at *2 (D.
Colo. Jan. 14, 2026). As already discussed, the CCRD’s Notice identifies only one
respondent: PeopleReady. See Dkt. 8-1 at 1. Therefore, the Court lacks jurisdiction
over Plaintiff’s CADA claim against Frontier Fertilizer.
Because Plaintiff failed to exhaust administrative remedies as to his Title VII
and CADA claims against Frontier Fertilizer, the Court grants Frontier’s Motion
and dismisses those claims without prejudice. Brereton, 434 F.3d at 1218 (where
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the court lacks subject matter jurisdiction, dismissal is without prejudice); Cirocco v.
McMahon, 768 F. App’x 854, 858 (10th Cir. 2019) (noting that a Title VII claim’s
dismissal for failure to exhaust administrative remedies must be without prejudice).
2. 	Claims 3, 4, 5, and 7: Adequacy of Allegations against Frontier
Fertilizer
Next, Frontier Fertilizer argues that Plaintiff’s claims against it in connection
with Claims 3, 4, 5, and 7 are entirely deficient and justify dismissal. Dkt. 18 at pp.7-
9.
“[T]o state a claim in federal court, a complaint must explain what each
defendant did to him or her; when the defendant did it; how the defendant’s action
harmed him or her; and, what specific legal right the plaintiff believes the defendant
violated.” Nasious v. Two Unknown B.I.C.E Agents, 492 F.3d 1158, 1163 (10th Cir.
2007). Allegations that explain each defendant’s involvement “permit[] the defendant
sufficient notice to begin preparing its defense and the court sufficient clarity to
adjudicate the merits.” Id.
Claim 3 concerns an alleged violation of the Fair Credit Reporting Act, 15
U.S.C. § 1681 et seq. In support of Claim 3, Plaintiff alleges that “Defendant Buchalla
obtained Plaintiff[’s] consumer report without proper authorization and used it to
discriminate against Plaintiff,” and “Defendants PeopleReady and Shawn Buchalla
violated the [Fair Credit Reporting Act] by obtaining and using Plaintiff[’s] consumer
report without prior authorization.” Dkt. 8 at p.11. As Frontier Fertilizer argues in
its Motion, nowhere does Plaintiff allege that Defendant Buchalla obtained the
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consumer report at Frontier Fertilizer’s direction or on its behalf. Dkt. 18 at pp.7-8.
Plaintiff has failed to notify Frontier Fertilizer what it did to violate the Fair Credit
Reporting Act, when it did it, and how its actions harmed Plaintiff. Therefore Claim
3 is dismissed without prejudice to the extent it is asserted against Frontier
Fertilizer.
Claim 4 fares no better. That claim concerns a violation of the Colorado
Consumer Reporting Act, Colo. Rev. Stat. § 12-14.3-101 et seq. In support, Plaintiff
alleges that “Defendant Buchalla obtained Plaintiff[’s] consumer report without
proper authorization and used it to discriminate against Plaintiff.” Dkt. 8 at p.12. As
with Claim 3, Plaintiff fails to notify Frontier Fertilizer what it did to violate the
Colorado Consumer Reporting Act, when it did it, and how its actions harmed
Plaintiff. Therefore, Claim 4 is dismissed without prejudice to the extent it is
asserted against Frontier Fertilizer.
Claim 5 is a defamation claim. Plaintiff alleges that “Defendant Buchalla made
[a] false and derogatory statement about Plaintiff to others, damaging Plaintiff[’s]
reputation.” Dkt. 8 at p.12. This claim contains no allegations against Frontier
Fertilizer. Therefore, Claim 5 is dismissed without prejudice to the extent it is
asserted against Frontier Fertilizer.
Claim 7 is a claim for negligent hiring and retention. In support, Plaintiff
alleges that “Defendant PeopleReady negligently hired and retained Buchalla, who
engaged in discriminatory and retaliatory conduct” and “posed a foreseeable risk of
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harm to Plaintiff.” Dkt. 8 at p.13. This claim contains no allegations against Frontier
Fertilizer. Therefore, Claim 7 is dismissed without prejudice to the extent it is
asserted against Frontier Fertilizer.
3. 	Claim 6: Intentional Infliction of Emotional Distress
In support of his claim for intentional infliction of emotional distress (Claim 6),
Plaintiff alleges that “[a]ll Defendants[’] conduct, including the discriminatory and
retaliatory actions[,] caused Plaintiff severe emotional distress.” Dkt. 8 at p.12.
Elsewhere in the Complaint, Plaintiff alleges that Frontier Fertilizer engaged in the
following discriminatory practices: it coordinated with PeopleReady to “pay Plaintiff
lower wages than none protected [sic] workers for same work”; “falsified time
records;” “failed to pay for all hours worked;” “misreported hours to PeopleReady;”
“failed to process wage correction;” “denied proper job classification;” “created dual
time-keeping records;” and “denied proper meals and rest breaks.” Id. at p.7.
Frontier Fertilizer argues that Plaintiff’s claim fails because its alleged
conduct “is not extreme harassment, ridicule, humiliation or anything beyond
discrimination,” and “[not] [e]very claim for discrimination and retaliation . . . rise[s]
to the level of outrageous conduct.” 	Dkt. 18 at pp.9-10. For the reasons explained
below, the Court agrees.
To state an actionable claim for intentional infliction of emotional distress, a
plaintiff must plausibly allege (1) the defendant engaged in extreme and outrageous
conduct; (2) the defendant engaged in the conduct recklessly or with the intent of
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causing the plaintiff severe emotional distress; and (3) the plaintiff incurred severe
emotional distress which was caused by the defendant’s conduct. Culpepper v. Pearl
St. Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994). “Outrageous conduct” is conduct “so
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,” Id. (quoting Destefano v. Grabrian, 763 P.2d 275, 286 (Colo. 1988)).
“In Colorado, the tort of intentional infliction of emotional distress is extremely
limited.” Yarbrough v. ADT Sec. Servs., Inc., No. 07-cv-01564-LTB-KMT, 2008 WL
3211284, at *8 (D. Colo. Aug. 6, 2008). To illustrate the tort’s limited nature, courts
have dismissed intentional infliction of emotional distress claims premised on alleged
wrongful termination. See id. (citing Katz v. City of Aurora, 85 F. Supp. 2d 1012, 1021
(D. Colo. 2000); Bellairs v. Coors Brewing Co., 907 F. Supp. 1448, 1459 (D. Colo. 1995);
Barham v. Scalia, 928 P.2d 1381, 1385-86 (Colo. App. 1996) (stating, “the mere firing
of an employee, without conduct specifically calculated to cause emotional distress to
the employee, is not enough to support a claim based on outrageous conduct”).
In Yarbrough, the court considered assertions regarding an employer’s alleged
inadequate investigation of an incident, a supervisor’s lies to upper management, the
employer’s issuance of a written warning to the plaintiff, company officials’ efforts to
force 	a 	co-worker 	to 	lie 	about 	the 	plaintiff’s 	conduct, 	and 	company 	officials’
coordinated 	efforts 	to 	concoct 	false 	bases 	to 	support 	the 	plaintiff’s 	wrongful
termination. Id. The court determined that, as a matter of law, these assertions “do
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not rise to the level of conduct ‘so 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.’” Id. at *9 (quoting Culpepper, 877 P.2d
at 882 (Colo. 1994)).
In Katz v. City of Aurora, the court dismissed an intentional infliction of
emotional distress claim premised on conclusory allegations that the defendant’s
conduct was outrageous because the plaintiff was “railroaded . . . out of the police
department[.]” 85 F. Supp. 2d at 1021. The court also dismissed the claim because it
was based on the same allegations as those forming the basis for the plaintiff’s
discrimination claim. Id. (quoting Visor v. Sprint/United Mgmt. Co., 965 F. Supp. 31,
33 (D. Colo. 1997) (“[w]here the allegations forming the basis of a claim for outrageous
conduct are the same as those forming the basis of a claim of discrimination, and
nothing more, they fail to state an independently cognizable claim for which relief
can be granted under Rule 12(b)(6)”).
Here, the allegations Plaintiff relies upon to support his intentional infliction
of emotional distress claim are the same as the allegations on which Plaintiff’s Title
VII and CADA claims against Frontier Fertilizer rest. Compare Dkt. 8 at p.7 with id.
at p.12. Additionally, Plaintiff’s allegations fall well short of plausibly alleging that
Frontier Fertilizer’s conduct was “so 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.” Yarbrough, 2008 WL 3211284, at
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*9; Culpepper, 877 P.2d 877, 882. Therefore, Claim 6 is dismissed 	without
prejudice to the extent it is asserted against Frontier Fertilizer.
To summarize, all seven of Plaintiff’s claims against Frontier Fertilizer are
dismissed without prejudice. The Court now turns to Plaintiff’s claims against
Defendants PeopleReady and Buchalla.
B. 	PeopleReady, Buchalla, and Gamboa’s Motion to Dismiss (Dkt.
34, 34-1)
1. 	Allegations against Gamboa
Though Plaintiff named Pam Gamboa a defendant, his allegations against her
are limited to: “[Gamboa is] [a]n attorney employed by PeopleReady[,] [r]esponsible
for 	handling 	discrimination 	complaints[,] 	investigating 	employee 	complaints[.]
advising 	on 	personal 	matters” 	and 	“personally 	involved 	in 	. 	. 	. 	dismissing
discrimination complaints,” “implementing retaliatory actions at law level,” and
“facilitating retaliatory practices.” Dkt. 8 at p.7. Plaintiff further states that “Gamboa
handled legal compliance and accommodation request.” Id. These unadorned and
conclusory allegations are disconnected from any of Plaintiff’s seven claims for relief.
Further, they fail to explain what Defendant Gamboa did to him, when she did it,
how her actions harmed Plaintiff, and what specific legal right Plaintiff believes
Gamboa violated. Nasious, 492 F.3d at 1163. Therefore, Defendant Gamboa is
dismissed from this lawsuit.
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2. 	Discrimination under Title VII & CADA (Claim 1)
Plaintiff alleges that Defendants PeopleReady and Buchalla discriminated
against him by providing “similar[ly] situated employees who are not members of
Plaintiff[’s] 	protected 	class” 	more 	job 	opportunities, 	better 	pay, 	overtime
opportunities, 	and health 	benefits. 	Dkt. 8 	at 	p.9. 	He 	claims 	that 	Defendants
discriminated against him based on his conviction record and that they limited him
to “jobs with other felons.” Id. at p.10.
Under Title VII, it is unlawful “to discharge any individual, or otherwise
discriminate 	against 	any 	individual 	with 	respect 	to 	his 	compensation, 	terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). “Colorado and federal law
apply the same standards to discrimination claims.” Johnson v. Weld County, Colo.,
594 F.3d 1202, 1219 n.11 (10th Cir. 2010). Therefore, the Court need only conduct
one analysis for both the Title VII and CADA discrimination claims.
An 	employee 	establishes 	an 	unlawful 	employment 	practice 	if 	he 	can
demonstrate that race, color, religion, sex, or national origin “was a motivating factor
for any employment practice, even though other factors also motivated the practice.”
42 U.S.C. § 2000e-2(m). A plaintiff can either set forth “direct evidence that a
workplace policy, practice, or decision relies expressly on a protected characteristic”
or “by using the burden-shifting framework” set forth in McDonnell Douglas Corp. v.
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Green, 411 U.S. 792, 793 (1973). Young v. United Parcel Serv., Inc., 575 U.S. 206, 213
(2015).
“To set forth a prima facie case of discrimination, a plaintiff must establish
that (1) [he] is a member of a protected class, (2) [he] suffered an adverse employment
action, (3) [he] qualified for the position at issue, and (4) [he] was treated less
favorably than others not in the protected class.” Khalik v. United Air Lines, 671 F.3d
1188, 1192 (10th Cir. 2012). While Plaintiff is not required to establish a prima facie
case in his complaint, he must allege sufficient facts supporting the elements of his
causes of action to set forth plausible claims. Khalik, 671 F.3d at 1192.
Here, Plaintiff expressly asserts that Defendants discriminated against him
“based on conviction record.” Dkt. 8 at p.10. Because one’s status as a convicted felon
is not a protected class under either Title VII or CADA, Plaintiff’s discrimination
claim fails. However, the Court must liberally construe Plaintiff’s allegations;
therefore, the Court also considers Plaintiff’s status as an African American and
someone with a mental disability.
“[T]o plausibly allege discriminatory animus based on differential treatment,
a complaint must ‘allege some set of facts that taken together plausibly suggest
differential treatment of similarly situated employees.’” Smith v. McDonough, No. 20-
1321 KK/JFR, 2021 WL 4656066, at *5 (D.N.M. Oct. 7, 2021) (quoting Hwang v. Kan.
State Univ., 753 F.3d 1159, 1164 (10th Cir. 2014)). Facts that help establish
plausibility include “who engaged in the alleged discriminatory conduct at issue,
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when and in what context the conduct occurred, and why the plaintiff believes the
conduct ‘was connected with discriminatory animus.’” Id. (quoting Khalik, 671 F.3d
at 1191). Though Plaintiff identifies his race and mental disability,3 see Dkt. 8 at p.6,
he does not allege much beyond asserting that Defendant Buchalla “made derogatory
discriminat[ory] 	statements 	towards 	Plaintiff” 	and 	that 	“similar[ly] 	situated
employees who are not members of Plaintiff[’s] protected class [were] treated more
favorably, 	including 	. 	. 	. 	more 	job 	opportunities,” 	“better 	pay,” 	“overtime
opportunities,” and “health benefits.” Id. at 8-9. Plaintiff, however, does not allege
how those employees were similarly situated to him. See Aramburu v. Boeing Co., 112
F.3d 1398, 1404 (10th Cir. 1997) (explaining that “[s]imilarly situated employees are
those who deal with the same supervisor and are subject to the same standards
governing performance evaluation and discipline.”). These conclusory allegations do
not give rise to an inference of unlawful discrimination. See Plotke v. White, 405 F.3d
1092, 1100 (10th Cir. 2005) (stating that the allegations must “give rise to an
inference of unlawful discrimination.”).
Because 	Plaintiff’s 	allegations 	fall 	well 	short 	of 	plausible, 	Claim 	1 	is
dismissed without prejudice to the extent it is asserted against Defendants
PeopleReady and Buchalla.
3 To the extent Plaintiff seeks to assert a disability discrimination claim, Title VII
does not apply; rather, the Americans with Disabilities Act protects against disability
discrimination in the workplace.
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3. 	Retaliation under Title VII & CADA (Claim 2)
Plaintiff 	also 	alleges 	that 	both 	Defendants 	retaliated 	against 	him 	for
complaining about their discriminatory practices by removing him from certain jobs.
Dkt. 8 at pp.9, 11.
To establish a prima case of retaliation, Plaintiff must first show: (1) he
engaged in protected conduct related to Title VII or CADA discrimination; (2) he
suffered 	an 	adverse 	employment 	action 	thereafter; 	and 	(2) 	there 	is 	a 	causal
connection between his protected conduct and the adverse action. Laul v. Los Alamos
Nat’l Lab’ys, 765 F. App’x 434, 441-42 (10th Cir. 2019); see also Schone v. Sodexo, Inc.,
No. 19-cv-02283-SKC, 2021 WL 915937, at *7 (D. Colo. Mar. 10, 2021) (noting that
the analysis for state and federal retaliation claims is identical).
Here, Plaintiff alleges that after he “filed discrimination, retaliation, and wage
complaints with the [EEOC] and CCRD, PeopleReady retaliated by reducing [his]
work hours.” Dkt. 8 at p.11. To the extent that Plaintiff’s complaints concerned
discrimination he faced as a convicted felon, his retaliation claim fails because his
complaints did not concern discrimination that violates Title VII or CADA. See Zokari
v. Gates, 561 F.3d 1076, 1081 (10th Cir. 2009) (“Opposition is protected . . . only if it
is opposition to a practice made an unlawful employment practice by Title VII.”)
(internal quotation marks and citation omitted); see also Tracy v. Vail Resorts, Inc.,
No. 21-4145, 2022 WL 16557393, at *4 (10th Cir. Nov. 1, 2022) (finding that Title VII
retaliation claim failed to the extent it was premised on termination following
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complaints about workplace safety, which was not conduct protected by Title VII). To
the extent that Plaintiff complained of discrimination that violates Title VII or CADA,
his allegations are threadbare and conclusory. Plaintiff merely speculates that his
work hours were reduced because of the complaints he filed with the EEOC and
CCRD. Plaintiff has alleged no facts that permit the Court to reasonably infer that
his work hours were reduced in response to his complaints. After all, PeopleReady is
a staffing agency, see Dkt. 8 at p.6, and a variety of factors could have resulted in
reduced work hours. Cf. Smith, 2021 WL 4656066, at *5 (finding discrimination claim
implausible where the allegations left open the possibility of a race-neutral reason,
such as poor performance, for the alleged conduct.).
Therefore, Claim 2 is dismissed without prejudice to the extent it is
asserted against Defendants PeopleReady and Buchalla.
4. 	Fair Credit Reporting Act and Colorado Consumer Credit
Report Act Violations (Claims 3 and 4)
Plaintiff alleges that “Defendant Buchalla obtained Plaintiff[’s] consumer
report without proper authorization and used it to discriminate against Plaintiff”
and, resultingly, “Defendants PeopleReady and Shawn Buchalla violated the [federal
and state Credit Reporting Acts].” Dkt. 8 at pp.11-12.
To state a claim “for obtaining a credit report without a proper purpose, a
plaintiff must [plausibly allege] (1) there was a consumer report; (2) defendant used
or obtained it; (3) defendant did so without a permissible statutory purpose; and (4)
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defendant was negligent (or willful) in doing so.” Grays v. Kittredge Co Partners, No.
20-cv-00208-WJM-SKC, 2021 WL 1300601, at *6 (D. Colo. Feb. 17, 2021).
The 	Federal 	Act 	expressly 	contemplates 	use 	of 	consumer 	reports 	“for
employment purposes.” 15 U.S.C. § 1681b(a)(3)(B). Additionally, the Federal Act sets
parameters on use for employment purposes. Specifically, the consumer report may
“not be used in violation of any applicable Federal or State equal employment
opportunity law or regulation[.]” 15 U.S.C. § 1681b(b)(1)(A)(ii). Additionally, the
Federal Act states:
a person may not procure a consumer report, or cause a consumer report
to be procured, for employment purposes with respect to any consumer,
unless—
(i) a clear and conspicuous disclosure has been made in writing to the
consumer at any time before the report is procured or caused to be
procured, in a document that consists solely of the disclosure, that a
consumer 	report 	may 	be 	obtained 	for 	employment 	purposes; 	and
(ii) the consumer has authorized in writing (which authorization may be
on the document referred to in clause (i)) the procurement of the report
by that person.
15 U.S.C. § 1681b(b)(2)(A).
The 	Colorado 	Consumer 	Reporting 	Act 	contains 	similar 	safeguards 	and
restrictions on use. Specifically, the State Act allows a consumer reporting agency to
provide a consumer report “[t]o a person which the consumer reporting agency has
reason to believe . . . Intends to use the information for employment purposes only if
an applicant or employee is first informed that a credit report may be requested in
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connection with his or her application for employment and the consumer consents in
writing to the same[.]” COLO. REV . STAT . § 5-18-104(1)(c)(II).
Here, Plaintiff baldly alleges that Defendants PeopleReady and Buchalla
obtained his consumer report “without proper authorization.” But the Court does not
know what that means. Does Plaintiff mean that the report was obtained for an
improper 	purpose? 	Does 	Plaintiff 	mean 	that 	Defendants 	did 	not 	clearly 	and
conspicuously disclose, in writing to Plaintiff, that they were going to obtain his
consumer report for employment purposes? Or does Plaintiff mean that he did not
provide written authorization for Defendants to obtain his consumer report?
Because Plaintiff’s allegations are conclusory and threadbare, he fails to state
actionable claims for violations of the Fair Credit Reporting Act and the Colorado
Consumer Credit Reporting Act. Therefore, Claims 3 and 4 are dismissed without
prejudice to the extent they are asserted against Defendants PeopleReady and
Buchalla.
5. 	Defamation (Claim 5)
Plaintiff alleges that “Defendant Buchalla made [a] false and derogatory
statement about Plaintiff to others, damaging Plaintiff[’s] reputation.” Dkt. 8 at p.12.
Plaintiff does not identify the allegedly defamatory statement; however, on a liberal
construction, this claim appears to be based on Defendant Buchalla’s statement to
Plaintiff that, due to the felony conviction, Plaintiff could only be assigned to jobs
with other felons. Id. at p.10.
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To state a claim for defamation, Plaintiff must plausibly allege that (1)
Defendant Buchalla made a statement; (2) which was published to third persons; (2)
that the substance of the statement was false when published; and (4) Defendant
Buchalla knew it was false or made the statement with reckless disregard as to
whether it was false or not. Zerr v. Johnson, 894 F. Supp. 372, 376 (D. Colo. 1995).
Here, Plaintiff’s conclusory and threadbare allegations fail to satisfy the
elements of a defamation claim. Plaintiff does not identify the statement made, to
whom it was spoken, why the statement was false, and whether Defendant Buchalla
knew the statement was false at the time it was made or recklessly disregarded
whether it was false. If Plaintiff’s claim rests on any statement that his felony
conviction would limit his job assignments, that statement was made to him, not a
third person, and it was apparently true, according to the background check.
Therefore, Plaintiff fails to state a defamation claim and Claim 5 is dismissed
without prejudice to the extent it is asserted against Defendant Buchalla.
6. 	Intentional Infliction of Emotional Distress (Claim 6)
Plaintiff alleges that “[a]ll Defendants[’] conduct, including the discriminatory
and retaliatory actions[,] caused Plaintiff severe emotional distress.” Dkt. 8 at p.12.
Elsewhere in the Complaint, Plaintiff alleges that PeopleReady “failed [to] properly
process payroll” and “manipulated time records to reduce wages.” Id. at p.7. For
reasons discussed in section III(A)(3), above, Plaintiff has failed to state a claim for
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intentional infliction of emotional distress. Therefore, Claim 6 is dismissed without
prejudice to the extent it is asserted against Defendants PeopleReady and Buchalla.
7. 	Negligent Hiring and Retention (Claim 7)
Plaintiff alleges that “Defendant PeopleReady negligently hired and retained
Buchalla, who engaged in discriminatory and retaliatory conduct” and “posed a
foreseeable risk of harm to Plaintiff.” Dkt. 8 at p.13.
To state a claim for negligent hiring or retention, a plaintiff must allege “the
usual 	elements 	of 	negligence—duty, 	breach, 	injury, 	causation—and 	the
establishment 	of 	an 	agency 	relationship 	between 	the 	employer 	and 	alleged
employee.” Nielsen v. Archdiocese of Denver, 413 F. Supp.2d 1181, 1184 (D. Colo.
2006) (citation omitted); see also Valles v. Gen-X Echo B, Inc., No. 13-cv-00201-RM-
KLM, 2013 WL 5861653, at *6 (D. Colo. Oct. 8, 2013), report and recommendation
adopted Valles v. Gen-X Echo B, Inc., No. 13-cv-00201-RM-KLM, 2013 WL 5832745
(D. Colo. Oct. 30, 2013) (elements of negligent retention). “An employer will be found
liable for negligent hiring and retention if, at the time of hiring, the employer had
reason to believe that hiring the employee in question would create an undue risk of
harm to others.” Johnson v. USA Truck, Inc., No. 06-cv-00227-EWN-MEH, 2007 WL
2461645, at *3 (D. Colo. Aug. 27, 2007) (citing Van Osdol v. Vogt, 908 P.2d 1122, 1133
(Colo. 1996)). When considering a negligent hiring claim, “the court does not inquire
into the employer’s broad reasons for choosing this particular employee for the
position, 	but 	instead 	looks 	to 	whether 	the 	specific 	danger 	which 	ultimately
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manifested itself could have reasonably been foreseen at the time of hiring.” Van
Osdol, 908 P.2d at 1132 n.17.
Defendants argue these claims are “barred by workers’ comp exclusivity.” Dkt.
34-1 at p.13. Plaintiff does not contest this assertion. The Court agrees with
Defendants. “Recovery of workers’ compensation benefits is an employee’s exclusive
remedy against an employer for tortious actions resulting in personal injury.”4
Middlemist v. BDO Seidman, LLP, 958 P.2d 486, 494 (Colo. App. 1997) (dismissing,
on summary judgment, plaintiff’s claims for negligent hiring and supervision that
sought damages for emotional pain and suffering and mental anguish based on
plaintiff’s firing).
Workers’ compensation exclusivity aside, these claims are also subject to
dismissal because Plaintiff fails to plausibly allege them. The Complaint contains no
factual allegations supporting causation, or factual allegations regarding what would
have given this employer reason to believe that hiring Buchalla would create an
undue risk of harm to others. Johnson, 2007 WL 2461645, at *3. It merely alleges
these claims in conclusory fashion.
Therefore, Claim 7 is dismissed without prejudice.
4 The Complaint seeks damages for “emotional distress, mental anguish, and pain
and suffering.” Dkt. 8, ECF p.15.
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8. 	Fair Labor Standards Act and Colorado Wage Act Claims
Defendants PeopleReady and Buchalla liberally construe Plaintiff’s allegations
and present arguments on potential claims for violations of the Fair Labor Standards
Act and the Colorado Wage Act because the Complaint lists these statutes but only
in reference to this Court’s jurisdiction. Dkt. 34-1 at pp. 14-15. Plaintiff does not
expressly state claims for relief under these statutes. See Dkt. 8 p.5 (referencing 29
U.S.C. § 215(a)(3)) & Colo. Rev. Stat. § 8-4-101). He does generally allege Defendants
“failed to pay for all hours worked,” “misclassified work duties to justify lower pay,”
and “falsified” or “manipulated” time records. Id. at p.7. But he does not assert claims
for relief under either of these statutes, even by a liberal construction.
29 U.S.C. § 215(a)(3) prohibits discharge or other forms of discrimination
“against any employee because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under [the Fair Labor Standards Act], or
has testified or is about to testify in any such proceeding, or has served or is about to
serve on an industry committee[.]” Similarly, Colo. Rev. Stat. § 8-4-120(1) prohibits
an employer from discriminating or retaliating against an employee who has “[f]iled
a complaint or instituted or caused to be instituted a proceeding . . . related to wages
[or] hours[.]”
There are no factual allegations in the Complaint regarding any complaints
Plaintiff filed against these Defendants, or proceedings he instituted or caused to be
instituted against them, under the FLSA or the Colorado Wage Act related to the
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vague allegations in the Complaint that reference his hours, pay, and time records.
According to the Complaint, the only complaint he filed or proceeding he instituted
was his charge of discrimination dual-filed with he EEOC and CCRD concerning his
allegations of discrimination. Dkt. 8, ECF p.8.
Accordingly, to the extent these claims may exist in the Complaint with a
liberal construction, they fail Rule 12(b)(6) and are dismissed without prejudice.
* 	* 	*
For the reasons shared above,
IT IS HEREBY ORDERED that Defendants’ Motions to Dismiss (Dkt. 18, 34,
34-1) are granted. Plaintiff’s claims are dismissed without prejudice.
DATED: March 30, 2026
BY THE COURT:
_____________________________
S. Kato Crews
United States District Judge
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