Westby v. BKD CPAS & Advisors, LLP

          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.)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;On September 6, Curry cancelled the Skype meeting, and BKD&#39;s Chief Risk Officer Mike Wolfe sent Westby an email revoking her job offer. (Id. ¶¶ ...