United States District Court, D. Colorado
AMY L. WESTBY, Plaintiff,
v.
BKD CPAS & ADVISORS, LLP, Defendant.
ORDER ON MOTION TO DISMISS
Daniel
D. Domenico United States District Judge.
Before
beginning work with Defendant BKD CPAS & Advisors, LLP,
Plaintiff Amy Westby discovered an offensive Facebook post
maintained by a future co-worker. Westby exchanged emails
with BKD management for several weeks about the post, and BKD
eventually revoked Westby's job offer, stating that her
personal approach and communication style was inconsistent
with BKD's expectations. In this action, Westby alleges
that BKD illegally retaliated against her opposition to
discriminatory employment practices in violation of Title VII
and the analogous Colorado Anti-Discrimination Act. It is
before the Court on BKD's motion to dismiss for failure
to state a claim. (Motion, Doc. 46.) Magistrate Judge Scott
T. Varholak recommended that the Motion be granted in part
and denied in part. (Recommendation, Doc. 53.) Plaintiff
filed timely objections and BKD responded. (Objection, Doc.
55; Response, Doc. 56.) For the following reasons, the Court
ADOPTS the Recommendation in full and
OVERRULES the Objection.
I.
BACKGROUND
The
following allegations are drawn from the Amended Complaint
(Doc. 41) and are taken as true. See Wilson v.
Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013).
On
November 1, 2016, Plaintiff Amy Westby accepted an audit
associate position with Defendant BKD, a national accounting
firm, and was scheduled to begin work at BKD's Denver
office on September 20, 2017. (Am. Compl. ¶ 4.)
Westby is a half-Asian, half-Caucasian female. (Id.)
In August 2017, Westby learned that she had been assigned to
work with a training “buddy, ” Raena Conklin, for
her first six months of employment. (Id.
¶¶ 29-30.)
On
August 10, 2017, Westby looked up Conklin's Facebook
page. (Id. ¶ 33.) On it, she found a post
containing an image, drawn by Conklin, apparently depicting
Conklin's friend as a stick figure of an Asian woman with
slanted eyes, making the “V” sign with both
hands. (Id. ¶¶ 33-34.) Accompanying text
read, “I <3 you long time.” (Id.
¶ 34.) According to Westby, “[t]his statement is
offensive, because of the belief that Asians do not speak
proper English; also, because it has negative, sexual
connotations.” (Id.) Conklin identified
herself as a BKD employee on Facebook. (Id.)
Fearing
that more serious discriminatory issues might develop, Westby
emailed BKD Human Resources Manager Laura Sollie, expressing
her concerns about the offensive public post and being
assigned to work and train with someone who maintained it.
(Id. ¶¶ 30, 35.) On August 11, Westby and
Sollie spoke over the phone. Westby reiterated these concerns
and asked to be assigned to a new buddy. Sollie was
“hostile towards [Westby] over the phone and told her
that she was being ‘defensive.'”
(Id. ¶ 37.) The two spoke again on August 15,
with Sollie telling Westby that a new buddy had been assigned
because it was the “easiest thing to do.”
(Id. ¶ 38.) But Westby remained concerned about
the situation. Although she did not expect BKD to make
Conklin remove the post, she “feared that if the issue
were not properly addressed, it could lead to her having less
opportunities at BKD and a hostile work environment.”
After their phone call, Westby sent Sollie a follow-up email
to this effect. (Id. ¶ 39.) On August 16,
Sollie called back and left a voicemail, but Westby did not
return the call. (Id. ¶ 40.) On August 21,
Westby sent Sollie another email, in which she asked if she
had been reassigned to a different team. She was now worried
about retaliation because of Sollie's earlier hostility,
the delay in response time, and because she believed the
problem was not fully resolved. (Id. ¶ 41.)
On
August 25, Westby received an email from Rebecca Curry,
BKD's Employee Relations and Compliance Manager and Equal
Employment Opportunity (EEO) Coordinator based out of the
company's Missouri headquarters. Curry stated that BKD
had conducted an investigation, was happy that Westby had
been assigned to a new buddy, and that they considered the
matter closed. Curry did not directly respond to many
questions Westby had recently asked in her email, including
whether she would be reassigned to a new team, be required to
work with Conklin, or if the issue had been appropriately
addressed. Rather, Curry stated that there would be “no
changes to [Westby's] work assignments or the
opportunities [she would] be provided in [her] new
role” and instructed Westby to view the company's
Anti-Harassment Policy attached to the email. (Id.
¶ 43.) Westby responded saying she was happy to have a
new buddy and that she would contact Curry with any
additional questions. (Id. ¶ 44.)
But
Westby continued to be concerned. She believed the matter had
been escalated to BKD's headquarters but closed with no
additional attention. (Id.) So again on August 25,
she sent a second email to Curry asking for clarity on the
issues she had raised with Sollie but which had been left
unaddressed. She inquired whether BKD employees were
permitted to maintain discriminatory or racist public posts,
whether the company had determined Conklin's actions to
be discriminatory, and again whether she had been assigned to
a different team. She noted that the post remained online.
(Id. ¶ 45.)
Curry
responded on August 28, referring Westby to the company's
antidiscrimination policy and repeating the same information
contained in her earlier email. (Id. ¶ 46.) But
Westby still felt her questions were left unanswered. That
day, she emailed Curry a third time asking if there was
anyone else she could speak to about the situation. She
feared that Curry was implying that Westby herself had
violated the policy and that BKD had decided Conklin's
post was not discriminatory and had decided to retaliate
against her. (Id. ¶ 47.) Curry's August 29
response made Westby fear for her job. Curry stated,
“It is unfortunate that you interpreted my
communication with you to indicate your violation of BKD
policy. Let me assure you that is not correct.” For a
third time, Curry iterated that an investigation was
conducted (but had to remain confidential), the matter was
closed, and that Westby's work assignments and
opportunities had not changed. She closed the email by
stating:
Our employment offer to you still stands and we look forward
to you joining our firm and growing your career. If you
conclude you do not wish to join our firm, we ask that you
let us know at your earliest convenience. We invest
significant resources to help ensure a successful start for
all of our new hires, and need to make appropriate
arrangements in the event you choose not to join BKD.
At
this, Westby's concern grew. She believed Curry to be
retaliating against her by putting her offer at risk.
(Id. ¶ 48.)
On
August 30, Westby responded to Curry, voicing her belief that
BKD may be violating her Title VII rights but wanting to
resolve the matter informally. She said it was “absurd
to assume that she wanted to decline her job offer over this
issue of discrimination.” She expressed a desire to
work for BKD, but felt that the company was pushing her to
decline the offer. Finally, she made clear she would exercise
her Title VII rights if the discrimination and harassment
issues persisted. (Id. ¶ 49.)
On
September 1, Curry called and emailed Westby, leaving
messages asking her to call back to discuss the issue.
(Id. ¶ 50.) On September 2, Westby responded by
email stating she was not comfortable speaking on the phone.
Not realizing Curry held that title, Westby also asked to
speak with BKD's EEO Coordinator. (Id. ¶
51.) On September 5, Curry called and emailed again. She
“demanded” to speak to Westby over the phone to
go over what she believed to be a misunderstanding. To
Westby, Curry was harassing her. Curry then scheduled a Skype
meeting for September 6 with herself, Westby, and Julie
Cummings-BKD's Chief Human Resources Manager.
(Id. ¶ 52.) An hour later, Westby emailed back
stating she was not comfortable speaking over the phone and
she would like to “seek other options” to resolve
the matter because she was “highly concerned that the
issues would have a major negative effect of [her] future
work opportunities.” (Id. ¶ 53.) Later
that day, Westby sent another email detailing why she thought
the company was violating her rights under Title VII and
offered to speak with Curry and Cummings on September 7.
(Id. ¶ 55.)
On
September 6, Curry cancelled the Skype meeting, and BKD's
Chief Risk Officer Mike Wolfe sent Westby an email revoking
her job offer. (Id. ΒΆΒΆ ...