PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

JOSHUA F. YOUNG, 

 Plaintiff - Appellant, 

v. 

COLORADO DEPARTMENT OF 

CORRECTIONS; DEAN WILLIAMS; 

JILL HUNSAKER RYAN, 

 Defendants - Appellees. 

No. 23-1063 

_________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:22-CV-00145-NYW-KLM)

_________________________________ 

William E. Trachman (Erin M. Erhardt and David C. McDonald, with him on the briefs), 

Mountain States Legal Foundation, Lakewood, Colorado, for Plaintiff-Appellant. 

Pawan Nelson, Colorado Department of Law, Denver, Colorado (Philip J. Weiser, 

Colorado Attorney General, Leslie C. Schultze, Senior Assistant Attorney General, and 

Kerry Ferrell, Assistant Attorney General, filed the brief) for Defendants-Appellees. 

_________________________________ 

Before TYMKOVICH, MATHESON, and CARSON, Circuit Judges. 

_________________________________ 

TYMKOVICH, Circuit Judge. 

_________________________________ 

While Joshua Young was an employee for the Colorado Department of 

Corrections, he alleges that the Department implemented mandatory Equity, 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 11, 2024

Christopher M. Wolpert 

Clerk of Court

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Diversity, and Inclusion training that subjected him to a hostile work environment. 

After resigning from the Department because of the training program, Mr. Young 

sued, asserting claims under Title VII and the Equal Protection Clause. In his 

complaint, he alleged that the training program violated Title VII by creating a 

hostile work environment and violated the Equal Protection Clause by promoting 

race-based policies. In particular, he alleged the training demeaned him because of 

his race and promoted divisive racial and political theories that would harm his 

interaction with other corrections’ personnel and inmates. At the motion-to-dismiss 

stage, the district court dismissed both claims without prejudice. 

Title VII was enacted to combat workplace discrimination. Along with the 

Fourteenth Amendment’s Equal Protection Clause, it broadly prohibits employers 

from using racial criteria in hiring, firing, and promotion decisions. Both also 

prohibit employers from allowing work conditions to be permeated with hostile racial 

or sexual animus. To the extent diversity programs generate such animus, they are 

equally subject to the prohibitions of Title VII and the Fourteenth Amendment. 

Although Mr. Young’s complaint highlights various materials from the 

Department’s Equity, Diversity, and Inclusion training that he found strongly 

objectionable, our case law requires more. The training materials and any resulting 

department policies must be so severe or pervasive as to both objectively and 

subjectively alter the terms of employment for its employees and create an abusive 

working environment. 

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 Mr. Young’s allegations in the complaint do not meet this threshold. To be 

sure, Mr. Young’s objections to the contents of the EDI training are not 

unreasonable: the racial subject matter and ideological messaging in the training is 

troubling on many levels. As other courts have recognized, race-based training 

programs can create hostile workplaces when official policy is combined with 

ongoing stereotyping and explicit or implicit expectations of discriminatory 

treatment. The rhetoric of these programs sets the stage for actionable misconduct by 

organizations that employ them. 

But Mr. Young does not allege that the training occurred more than once—let 

alone an ongoing presence permeating the workplace. Nor does he allege any racebased harassing conduct, ridicule, or insult from either his co-workers or his 

supervisors within his workplace that occurred as a result of the training. Although 

he alleges the explicitly race-based implications of the training could eventually 

compromise employment opportunities, workplace cohesion, and prison security, 

those allegations are too speculative at this time to meet what our case law requires. 

I. Background 

A. Factual History1

Mr. Young worked for the Colorado Department of Corrections at its Limon 

Correctional Facility starting in 2017. Mr. Young’s superior performance resulted in 

his promotion to Housing Sergeant in 2019 and Visiting Sergeant in 2020. 

1

 These facts are taken from Mr. Young’s amended complaint. 

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Mr. Young alleges that the “Department of Corrections implemented 

mandatory trainings that made sweeping negative generalizations regarding 

individuals who are white, and other gross generalizations about members of other 

racial demographics.” A.C. ¶ 4. He claims the trainings “paint[ed] a grim picture of 

the United States as a racist country permeated with discrimination.” Id. ¶ 21. Mr. 

Young alleges that “[t]hese trainings forced [him] to hear and absorb statements that 

were facially based on race.” Id. ¶ 7. Mr. Young considered these “sweeping 

generalizations about white individuals . . . not merely boorish, juvenile, or annoying 

comments,” but indicative of a workplace “permeated with [race-based] 

discrimination, ridicule, and insult.” Id. 

Mr. Young does not describe the format of the mandatory training in his 

amended complaint, but the briefing on appeal clarifies that the EDI training 

consisted of several online modules that Department of Corrections employees 

completed on their own computers. Mr. Young alleges that the training materials for 

the Department of Corrections were provided by the Colorado Department of Public 

Health & Environment under the auspices of its Equity, Diversity, and Inclusion 

training. 

In the amended complaint, Mr. Young alleges that the “training materials were 

based upon a glossary of terms stating that all whites are racist, that white individuals 

created the concept of race in order to justify the oppression of people of color, and 

that ‘whiteness’ and ‘white supremacy’ affect all ‘people of color within a U.S. 

context.’” Id. ¶ 22. Mr. Young maintains that the “glossary also states that white 

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individuals are triggered by feelings of guilt and fear when confronted with 

‘information about racial inequality and injustice,’” a “phenomenon” labeled as 

“white fragility” in the glossary. Id. ¶ 23. The glossary bears the imprimatur of the 

Colorado Department of Public Health & Environment. 

App., Vol. I, 27. 

Mr. Young included other defined terms from the glossary, among the 

following: 

BIPOC: Acronym for Black, Indigenous People, and People of 

Color; the term is used to acknowledge that Indigenous and 

Black people have been most impacted by whiteness, both 

historically and in the present day. This shapes the experiences 

of and relationship to white supremacy for all people of color 

within a U.S. context. 

White Fragility: Discomfort and defensiveness, often triggered 

by feelings of fear or guilt, on the part of a white person when 

confronted by information about racial inequality and injustice. 

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Race: A social construct that artificially groups people by skin 

tone and other physical traits. The concept, which has no 

genetic or scientific basis, was created and used to justify social 

and economic oppression of people of color by white people. 

White Exceptionalism: The belief held by some white allies 

that they are exception to white racism even though they fail to 

address the implicit ways in which they perpetuate white 

supremacy. These individuals are often more interested in not 

seeming racist than actually improving the lives of people of 

color. This is sometimes referred to as fakequity. 

A.C. ¶ 24 (cleaned up). He alleges these materials, as a whole, imputed that “Mr. 

Young promotes racist principles merely by dint of the color of his skin.” A.C. ¶ 26. 

 Mr. Young also alleges that the training “included a section on ‘Other Tools & 

Resources’ that employees were to watch and read.” A.C. ¶ 29 (citing App., Vol. I, 

42). Mr. Young alleges he felt pressure to review these materials, and that he 

reviewed many of them as a result. Id. The “Other Tools & Resources” section 

provided links to additional EDI videos and a list of books about race and 

marginalized identities. 

One of these videos was Redlined, A Legacy of Housing Discrimination, 

described in the section as “a video that explains Redlining more in-depth.” Id. Mr. 

Young alleges Redlined features an interviewee using the N-word, “placing it in the 

voice of all individuals other than African-Americans.” Id. ¶ 31. Mr. Young 

describes the same video as accusing “all white individuals of misunderstanding that 

whatever success they had was a result of their own merit, as opposed to the simple 

product of past forms of race discrimination.” Id. ¶ 32. In the same vein, the video 

“describes white individuals as having a misplaced sense of success.” Id. ¶ 33. 

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 In the video Intersectionality 101, another video linked in the “Other Tools & 

Resources” section, Mr. Young asserts that “animated Claymation figures are used to 

describe how racial identities are distinct, and force individuals to have different 

experiences as they go through life.” Id. ¶ 38. In a screenshot of the video Mr. 

Young attached to the complaint, a “white woman named Greta is contrasted with 

two other individuals—Jerry and Fatima—as the video literally separates them by a 

physical divider, and states ‘Greta, on the other hand, can ignore intersectionality if 

she wants to—another form of privilege.” Id.

App., Vol. I, 68. 

Mr. Young characterizes two of the recommended books—White Fragility: 

Why It’s So Hard for White People to Talk About Racism, by Robin DiAngelo; and 

How to be an Antiracist, by Ibram X. Kendi—as “entrench[ing] invidious racial 

stereotypes.” Id. ¶ 36. Mr. Young claims these books “contain outright support for 

forms of invidious race discrimination masquerading as ‘anti-racist’ literature.” Id. 

¶ 35. 

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Mr. Young also alleges that the Office of Health Equity included an “Equity 

Continuum” document as part of the EDI training materials. Id. ¶ 39. Mr. Young 

characterizes this document and the other training material as advocating for 

“treating people differently on the basis of race, in contravention of state and federal 

law.” Id. 

App., Vol. I, 69. 

 Mr. Young states that “[t]hese are just a few of the multitude of examples of 

the racially discriminatory and abusive teachings that [he] and all employees at the 

Colorado Department of Corrections have been subjected to.” Id. ¶ 45. Mr. Young 

claims that the Department’s “trainings created a culture of suspicion and distrust in 

the [Department].” Id. ¶ 46. He alleges that his “own experiences [were] severe and 

pervasive” and claims that “his knowledge that his colleagues were being instructed 

in the same manner with the same trainings exacerbated the hostile [work] 

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environment.” Id. Additionally, he alleges that he felt “harassed and intimidated to 

the point that he no longer felt comfortable working for the [Department].” Id. ¶ 55. 

 Mr. Young complained through the Department’s formal complaint process 

but was informed that his complaint would not be investigated because it “did not 

establish reasonable cause to indicate the presence of discrimination [or] 

discriminatory harassment.” A.C. ¶ 49. Mr. Young states that his employer’s refusal 

to investigate or remedy the situation led him to resign from his employment with the 

Department of Corrections a short time after the training. 

B. Procedural History 

Mr. Young sued the Department of Corrections and the Executive Directors of 

both the Department of Corrections and the Colorado Department of Public Health & 

Environment. He subsequently amended his complaint, alleging two claims for 

relief: (1) a hostile work environment claim under Title VII against the Department 

of Corrections; and (2) an equal protection claim under 42 U.S.C. § 1983 against the 

Executive Directors. 

Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). 

The district court dismissed the Title VII claim as failing to state a claim because Mr. 

Young failed to sufficiently plead the alleged harassment was severe or pervasive. 

The court dismissed the equal protection claim for lack of standing because Mr. 

Young was no longer employed by the Department of Corrections, and thus could not 

challenge any state policy or practice related to prospective relief. The court 

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dismissed both claims without prejudice and, citing Mr. Young’s failure to request 

leave to amend, did not sua sponte grant Mr. Young leave to amend his claims. 

II. Analysis 

Mr. Young challenges three of the district court’s decisions: (1) dismissal of 

his hostile work environment claim; (2) dismissal of his equal protection claim; and 

(3) the district court’s failure to sua sponte grant leave to amend. We address each 

argument in turn. 

We review de novo a district court’s grant of a motion to dismiss for failure to 

state a claim. See Herrera v. City of Espanola, 32 F.4th 980, 991 (10th Cir. 2022). 

We “accept a complaint’s well-pleaded allegations as true, viewing all reasonable 

inferences in favor of the nonmoving party, and liberally construe the pleadings.” 

Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1136 (10th Cir. 2023). To 

survive a motion to dismiss for failure to state a claim, the complaint must “allege 

sufficient facts to state a claim for relief plausible on its face.” Id. (citing Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009)). 

We similarly review de novo a dismissal for lack of Article III standing. Safe 

Streets All. v. Hickenlooper, 859 F.3d 865, 877 (10th Cir. 2017). And we review 

denials of leave to amend a complaint under the abuse-of-discretion standard. SCO 

Grp., Inc. v. Int’l Bus. Machines Corp., 879 F.3d 1062, 1085 (10th Cir. 2018). 

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A. Hostile work environment claim 

1. Legal Standards 

Title VII of the Civil Rights Act of 1964 prohibits “discriminat[ion] 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). “Although Title VII does not explicitly mention 

hostile work environment, a victim of a racially hostile work environment may 

nevertheless bring a cause of action under Title VII.” Tademy v. Union Pac. Corp., 

614 F.3d 1132, 1138 (10th Cir. 2008) (quoting Ford v. West, 222 F.3d 767, 775 (10th 

Cir. 2000)). So, in addition to prohibiting discrete acts of discrimination, Title VII 

also protects employees from racially hostile work environments. See id. 

To state a racially hostile work environment claim under Title VII, a plaintiff 

must allege: (1) membership in a protected class; (2) he was subjected to unwelcome 

harassment; (3) the harassment was due to race; and (4) the harassment was so severe 

or pervasive that it altered a term, condition, or privilege of his employment and 

created an abusive environment. See Lounds v. Lincare, Inc., 812 F.3d 1208, 1222 

(10th Cir. 2015). 

Under these requirements, Title VII is violated when a workplace is 

“permeated with ‘discriminatory intimidation, ridicule, and insult,’ that is 

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment 

and create an abusive working environment.’” Harris v. Forklift Sys., Inc., 510 U.S. 

17, 21 (1993) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 67 

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(1986)). “In determining whether [a plaintiff] [has] made the requisite showing, we 

must consider a variety of factors, including, ‘[1] the frequency of the discriminatory 

conduct; [2] its severity; [3] whether it is physically threatening or humiliating, or a 

mere offensive utterance; and [4] whether it unreasonably interferes with an 

employee’s work performance.’” Sprague v. Thorn Ams., Inc., 129 F.3d 1355, 1365 

(10th Cir. 1997) (quoting Harris, 510 U.S. at 23) (bracketed numerals added). 

For harassment to be sufficiently severe or pervasive to alter the terms, 

conditions, or privileges of employment, the complained-of conduct must be both 

objectively and subjectively offensive. Id.; Harris, 510 U.S. at 21. “[I]t is not 

enough that a particular plaintiff deems the work environment hostile; it must also be 

of the character that it would be deemed hostile by a reasonable employee under the 

same or similar circumstances.” Lounds, 812 F.3d at 1222. 

In the context of a hostile work environment claim, a single event, if 

extraordinarily severe, can alter the conditions of a working environment. See, e.g., 

Tademy, 614 F.3d at 1144 (single noose incident raised issue as to racial animus); 

Turnbull v. Topeka State Hosp., 255 F.3d 1238, 1243–44 (10th Cir. 2001) 

(concluding plaintiff presented sufficient evidence to support a hostile work 

environment claim based on single incident where an inmate “knocked [the plaintiff] 

to the ground, undressed her and digitally penetrated her, bit and choked her, and 

repeatedly threatened to kill her”). 

“The phrase ‘terms, conditions, or privileges of employment’” is interpreted to 

reflect a “congressional intent ‘to strike at the entire spectrum of disparate treatment 

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of men and women’ in employment[.]” Nat’l R.R. Passenger Corp. v. Morgan, 536 

U.S. 101, 115–16 (2002) (quoting Harris, 510 U.S. at 21). Conduct that alters 

‘terms, conditions, or privileges of employment’ is not necessarily limited to 

instances of economic or tangible discrimination; it also “includes requiring people to 

work in a discriminatorily hostile or abusive environment.” Id. 

With these legal principles in mind, we turn to Mr. Young’s allegations.

2. Mr. Young’s Hostile work environment claim 

Mr. Young has plausibly alleged the first and third elements of a hostile work 

environment claim: membership in a protected class, and the harassment was due to 

race. Only the second and fourth elements of a hostile work environment claim are at 

play here. The questions are (1) whether Mr. Young sufficiently pleaded that he was 

subjected to unwelcome harassment, and (2) whether he plausibly alleged that the 

harassment was so severe or pervasive that it altered the terms or conditions of his 

employment and created an abusive working environment. 

Harassment. Mr. Young argues that incidents alleged in his amended 

complaint show that he was singled out because of his race. As described above, 

taking Mr. Young’s well-pleaded factual allegations as true, as we must, the incidents 

alleged in his amended complaint paint an unflattering portrait of the Department of 

Corrections’ employee training requirements. 

Mr. Young pleads a number of factual allegations relevant to workplace 

harassment, including “his knowledge that his colleagues were being instructed in the 

same manner with the same trainings exacerbated the hostile environment,” A.C. 

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¶ 46; and that he filed a formal complaint and was informed his complaint would not 

be investigated because it had not “establish[ed] reasonable cause to indicate the 

presence of discrimination [or] discriminatory harassment.” Id. ¶ 49. He also alleges 

that the “mandatory trainings created a racially hostile environment” by forcing him 

“to hear and absorb statements that were facially based on race,” with “sweeping 

generalizations about white individuals” which “indicated that the workplace is 

permeated with discrimination, ridicule, and insult.” Id. ¶ 7. One of the 

recommended videos had one of the interviewees using the N-word in the context of 

describing discriminatory housing practices. Id. ¶ 31. The training advises trainees 

to be careful of exclusionary “white norms,” id. ¶ 41, and critiques “white 

exceptionalism,” id. ¶ 24(d), a “fakequity” belief that “white allies” are “an exception 

to white racism” that “perpetuates white supremacy.” Id.

If not already at the destination, this type of race-based rhetoric is well on the 

way to arriving at objectively and subjectively harassing messaging. Taken seriously 

by managers and co-workers, the messaging could promote racial discrimination and 

stereotypes within the workplace. It could encourage racial preferences in hiring, 

firing, and promotion decisions. Moreover, employees who object to these types of 

messages risk being individually targeted for discriminatory treatment—especially if 

employers explicitly or implicitly reward discriminatory outcomes. 

Nevertheless, legally actionable discriminatory harassment under our case law 

must also be sufficiently severe or pervasive to alter the terms of employment. We 

turn to that question next. 

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Severe or Pervasive Hostility. Even assuming Mr. Young pleaded facts 

sufficient to demonstrate he endured unwelcome harassment, he must still allege 

facts that establish severe or pervasive hostility. 

 It is not enough that the plaintiff subjectively perceived the conduct to be 

severe or pervasive. We have plausible allegations of that here. Rather, the plaintiff 

must “show that a rational jury could find that the workplace is permeated with 

discriminatory intimidation, ridicule, and insult.” Throupe v. Univ. of Denver, 988 

F.3d 1243, 1252 (10th Cir. 2021). Severity and pervasiveness are assessed based on 

a number of factors within the workplace: the frequency and severity of the 

discriminatory conduct; whether the conduct is physically threatening or humiliating 

or merely an offensive utterance; and whether the conduct unreasonably interferes 

with an employee’s work performance. See Sprague v. Thorn Ams., Inc., 129 F.3d 

1355, 1365 (10th Cir.1997). 

The allegations in Mr. Young’s amended complaint do not sufficiently 

establish these requirements. For example, Mr. Young claims that he was “forced to 

resign from his position” because of the EDI Training. A.C. ¶ 48. But Mr. Young 

provides no specific facts, context, or explanation for why or how he was forced to 

resign. We know Mr. Young was offended by the EDI training, and that he was upset 

about the Department’s response when he complained about the EDI training. But 

what we do not know is what he experienced in the workplace due to the EDI 

training—particularly his interactions with supervisors and co-workers. 

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While Mr. Young asserts that he experienced severe and pervasive harassment, 

again he does not allege specific facts that demonstrate how the training related to his 

actual workplace experience. For example, he does not allege that the training 

occurred more than once, that his supervisors threatened to punish or otherwise 

discipline employees who failed to complete or agree with the materials, or that coworkers engaged in specific acts of insult or ridicule aimed at him because of the 

training. To be sure, Mr. Young contends the training could lead to safety or security 

concerns because of the nature of the workplace—a state prison. But at this point, 

his concern is speculative.2

 

To overcome these deficiencies, Mr. Young argues that the nature of the 

harassment—an employer’s official policy—should guide our analysis. Mr. Young 

relies on two out-of-circuit cases for this proposition. First, he points to Henry v. 

CorpCar Services Houston, a case where an African-American plaintiff worked at a 

limousine service company staffed with predominantly African-American chauffeurs. 

625 F. App’x 607, 608–09 (5th Cir. 2015). In recognition of Juneteenth—the holiday 

commemorating the 1865 announcement of the abolition of slavery in Texas—the 

plaintiff asked for time off so he could attend events and speaking engagements. The 

2

 Perhaps an ongoing, continuing commitment from Mr. Young’s supervisors to 

mandatory EDI trainings with content similar to the one here may evolve into a 

plausible hostile workplace claim. But the single training session here is not enough. 

And requiring government employees to either endorse a particular race-based 

ideological platform or risk losing their jobs could also evolve into a plausible claim 

of pervasive hostility—or even venture into the realm of compelled speech. 

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plaintiff “discussed with [the general manager] in particular the significance of 

Juneteenth.” Id. at 608. 

The company went on to schedule multiple safety meetings for June 18th, 

19th, and 20th, and required employees to attend at least one of the meetings. The 

company’s CEO hired a singing telegram—a white woman in a black gorilla suit—to 

perform at the mandatory meetings. The performer “sang, danced, touched 

employees, and sat in their laps.” Id. “She did Tarzan yells and repeatedly referred 

in a suggestive manner to ‘big black lips,’ ‘big black butt,’ and bananas.” Id. The 

performer specifically targeted the plaintiff—calling him by name and asking, “[A]re 

you ready for this? Here’s your Juneteenth. Oh, these nice big black hairy lips. Don’t 

you want some?” Id. at 609. She continued, “Oh, that nice banana in your pants. 

You could have worked for La Bare’s. Oh, don’t you want to make me scream.” Id. 

During this performance, the general manager, who was also recording a video of the 

event on his cell phone, leaned over to the plaintiff and said, “Okay. Here’s your 

Juneteenth.” Id. at 608–09. 

Certainly, Mr. Young is correct that the harassment the plaintiff in Henry

faced constituted official acts of the company and thus was relevant to the court’s 

analysis. And to be sure, the EDI training here was the official policy of the 

Colorado Department of Corrections. But Mr. Young does not yet allege a 

comparable pattern of race-based intimidation, ridicule, or insult that accompanied 

his employer’s official acts, which characterized the situation in Henry. 

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The same is true for the other case Mr. Young cites, Orlando v. BNP Paribas 

North America, No. 14 CIV. 4102 AJP, 2015 WL 6387531, at *18 (S.D.N.Y. Oct. 22, 

2015). In that case, the plaintiff—a Jewish man—alleged he was subjected to a 

hostile work environment when his company twice showed a Hitler-parody video at a 

mandatory off-site conference.3

 When the plaintiff reported his concerns to his 

supervisor, the supervisor “told him to ‘shut the f**k up’ and made an ‘absolutely 

bone chilling threat at [the plaintiff] and [his] career.’” Id. at *2. 

We cannot conclude that Mr. Young’s situation is comparable. While Mr. 

Young also watched a video that he considered offensive, the similarities end there. 

The two fact patterns, and how their effects manifested in the workplace, are 

materially different. 

Undoubtedly, whether certain conduct amounts to severe or pervasive 

harassment depends on the particular circumstances and context in which such 

behavior takes place. Nonetheless, two of our cases are illustrative of mistreatment 

that characterize a severe or pervasive racially-hostile workplace: 

For example, in Lounds v. Lincare, Inc., 812 F.3d 1208 (10th Cir. 2015), the 

plaintiff—an African–American woman—alleged racial harassment that included coworkers and the plaintiff’s supervisor using the N-word, condoning lynching, use of 

race-based stereotypes, and other offensive racist terms. For example, one co-worker 

3

 We note for clarity that the plaintiff’s Title VII claims were time barred but the 

court found a hostile work environment under New York State Human Rights Law 

and New York City Human Rights Law. See Orlando, 2015 WL 6387531, at *16–18. 

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said during a conversation, “We need to bring back lynching because we have 

enough trees.” Lounds, 812 F.3d at 1213-14. The co-worker then approached the 

plaintiff and said, “‘I’m not trying to offend you; it’s not like I said let’s go down to 

9th and Grove (the Black Neighborhood) and drag every black person with a noose, 

tie them to a truck and drag them after hanging them.’” Id. at 1214 (cleaned up). 

When the plaintiff objected, the co-worker said she was being too sensitive. Id. On 

another occasion, a different co-worker began chanting, “Boom, N***a!” upon 

entering the office. Id. 

The co-workers’ conduct mirrored the conduct of the plaintiff’s supervisor. 

The plaintiff alleged that on her first day at work, her supervisor (who was also the 

facility manager) asked if her name was “Shaquita.” Id. at 1213. After asking the 

plaintiff to introduce herself to the group, the supervisor said, “I thought your name 

was Shaniqua!” Id. At yet another company meeting, the plaintiff’s supervisor 

instructed employees to address the company VP as “Yes Messa.” Id. at 1214. An 

employee present at the meeting reported that the comment visibly offended the 

plaintiff and that the plaintiff “had tears in her eyes” afterward. Id. 

Consider next Tademy v. Union Pac. Corp., 614 F.3d 1132 (10th Cir. 2008). 

There, the plaintiff—an African-American male—alleged racial harassment 

consisting of the N-word and “[N-word] go home” etched into his locker on separate 

occasions, racist cartoons posted on company billboards, a co-worker describing a 

black manager as “F***ing Kunta Kinte,” a manager addressing him as “boy,” and 

most troubling, a “life-sized hangman’s noose prominently suspended from a large 

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industrial wall clock.” 614 F.3d at 1135–37. “The sight of the noose caused [the 

plaintiff] to become so nauseated that he vomited.” Id. at 1137. 

The plaintiffs in Lounds and Tademy worked in environments permeated with 

race-based harassment, each enduring racially-abusive conduct, ridicule, and insult 

from both co-workers and supervisors. The abusive working environments created in 

Lounds and Tademy may well be a potential outcome of the type of training Mr. 

Young has alleged. But at this point, Mr. Young did not plead sufficient facts 

showing that he experienced severe or pervasive harassment in the course of his dayto-day job; he cannot rest only on the insults he experienced on the day he completed 

the EDI training.4

4

 One example of a complaint involving workplace diversity training that survived a 

motion to dismiss is found in De Piero v. Pa. State Univ et. al., No. CV 23-2281, 

2024 WL 128209 (E.D. Pa. Jan. 11, 2024). In that case, the complaint alleged that 

the plaintiff—De Piero—had to attend several conferences and training sessions 

where facilitators “ascrib[ed] negative traits to white people or white teachers 

without exception and as flowing inevitably from their race.” Id. at *7. Importantly, 

the plaintiff’s complaint included “emails and interpersonal interactions” from the 

time period as well: (1) a colleague making a comment that “resistance to wearing 

masks ‘is more likely to be led by white males;’” (2) an email from the Director of 

Diversity, Equity, and Inclusion instructing white employees at Penn State “‘feel 

terrible;’” and (3) messages and emails from the plaintiff’s supervisor encouraging 

him to “assure that all students see that white supremacy manifests itself in language 

and in writing pedagogy,” and “urging him to watch a video titled ‘White Teachers 

Are a Problem.’” Id. at *7. De Piero eventually resigned from his position at Penn 

State, citing his disagreement with its “recent emphasis on so-called ‘antiracist’ 

programming.” Id. at *3. 

 Another example is found in Diemert v. City of Seattle, No. 2:22-CV-1640, --- 

F. Supp. 3d ----, 2023 WL 5530009 (W.D. Wash. Aug. 28, 2023). In that case, the 

plaintiff alleged that a division manager asked him, “What could a straight white 

male possibly offer our department?” Id. at *1. Then, a “Director-level employee 

told Diemert it was ‘impossible to be racist toward ‘white people.’’” Id. During 

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In sum, Mr. Young alleges no comparable actions on the part of his co-workers 

or supervisors at the Department of Corrections. Mr. Young was not singled out by 

other correctional officers for race-based opprobrium. Nor was he physically 

confronted by a co-worker because of his objections to the EDI training. True, the 

racial rhetoric contained in the Department of Public Health & Environment’s online 

training materials echoes the racist views espoused by the co-workers and supervisors 

in Lounds and Tademy. But the lack of racial animus manifesting itself in Mr. 

Young’s day-to-day work environment distinguishes his case from those that have 

ratified a racially-hostile workplace claim. In short, Mr. Young has not plausibly 

alleged severe or pervasive harassment that altered the terms or conditions of his 

employment to create an abusive work environment. 

mandatory training, another director-level employee “repeated a similar 

sentiment . . . and added that all white people have privilege and are racist.” Id. The 

plaintiff also faced physical aggression from his supervisor, who “‘chest bumped’ 

him, got in his face, and told [Diemert] he had white privilege and racist motives.” 

Id. at *2. The plaintiff alleged he was forced to resign because the City of Seattle 

could no longer accommodate his request to work from home because of staffing 

shortages and his belief “that employees of color were given priority to telework.” 

Id. 

The two cases stand for roughly the same settled and sound principle, which 

the court in De Piero articulated and we endorse: merely discussing “the influence of 

racism on our society does not necessarily violate federal law.” No. CV 23-2281, 

2024 WL 128209 at *8. But “the way these conversations are carried out in the 

workplace matters.” Id. “When employers talk about race—any race—with a 

constant drumbeat of essentialist, deterministic, and negative language, they risk 

liability under federal law.” Id. (citing McDonald v. Santa Fe Rail Transp. Co., 427 

U.S. 273, 278-79, 286-87 (1976)). 

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 Because Mr. Young has failed to plausibly allege the second and fourth 

elements of a Title VII hostile work environment claim, we affirm the district court. 

B. Equal protection claim 

Mr. Young also asserted an equal protection claim that the district court 

dismissed for lack of standing. 

The Equal Protection Clause of the Fourteenth Amendment guarantees that 

“[n]o State shall . . . deny to any person within its jurisdiction the equal protection of 

the laws,” U.S. Const. amend. XIV, § 1, and “keeps governmental decision makers 

from treating differently persons who are in all relevant respects alike.” Soskin v. 

Reinertson, 353 F.3d 1242, 1247 (10th Cir. 2004). “The Clause ‘creates no 

substantive rights. Instead, it embodies a general rule that States must treat like cases 

alike but may treat unlike cases accordingly.’” Teigen v. Renfrow, 511 F.3d 1072, 

1083 (10th Cir. 2007) (quoting Vacco v. Quill, 521 U.S. 793, 799 (1997)). Relief for 

an Equal Protection Clause violation under 42 U.S.C. § 1983 is limited to prospective 

injunctive or declaratory relief. See Williams v. Utah Dep’t of Corr., 928 F.3d 1209, 

1214 (10th Cir. 2019) (citing Ex parte Young, 209 U.S. 123 (1908)). 

To satisfy Article III’s standing requirement, a plaintiff must establish: (1) an 

injury in fact; (2) a sufficient causal connection between the injury and the conduct 

complained of; and (3) a likelihood of redressability by a favorable decision. Baker 

v. USD 229 Blue Valley, 979 F.3d 866, 871 (10th Cir. 2020). For purposes of 

prospective injunctive or declaratory relief, a plaintiff must allege that he is 

“suffering a continuing injury or [is] under a real and immediate threat of being 

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23 

injured in the future.” Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 

2004). Conjectural or hypothetical injuries, or non-impending future injuries are 

insufficient. See Brown v. Buhman, 822 F.3d 1151, 1165 (10th Cir. 2016). 

Mr. Young alleges that the individual defendants violated the Equal Protection 

Clause by using training materials that “classify individuals by race, treat individuals 

differently based on race, and instruct employees to treat each other differently based 

on race.” A.C. ¶ 60. Mr. Young requests declaratory and injunctive relief against the 

two individual defendants and their state agencies to stop them from using the EDI 

training materials that are based on improper racial motivations. 

Mr. Young alleges that the EDI training materials are facially discriminatory. 

He alleges the materials “demean and stigmatize” him and “other similarly situated 

individuals, based on race and skin color.” Id. Mr. Young further alleges that the 

“[u]se of the training materials was motivated by a discriminatory purpose,” with 

“[w]hite individuals . . . uniformly stigmatized . . . as ‘racist,’ [and] ‘privileged,’ with 

any potential pushback preemptively described as ‘white fragility.’” Id. ¶ 67 

(internal citations omitted). 

The Supreme Court requires that racial classification survive strict scrutiny. 

“One of the principal reasons race is treated as a forbidden classification is that it 

demeans the dignity and worth of a person to be judged by ancestry instead of by his 

or her own merit and essential qualities.” Students for Fair Admissions, Inc. v. 

President & Fellows of Harvard Coll., 600 U.S. 181, 220 (2023) (quoting Rice v. 

Cayetano, 528 U.S. 495, 517 (2000)). When a state agency treats employees “on the 

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basis of race, it engages in the offensive and demeaning assumption that [employees] 

of a particular race, because of their race, think alike.” Miller v. Johnson, 515 U.S. 

900, 911–12 (1995). So state-sanctioned training programs that import racial 

assumptions or promote race-based differential treatment may very well offend the 

Equal Protection Clause. 

That said, the district court correctly dismissed Mr. Young’s equal protection 

claim for lack of standing because Mr. Young was no longer employed by the 

Department of Corrections. Mr. Young asserts he has standing for prospective relief 

because he seeks reinstatement under his Title VII cause of action. But Mr. Young 

does not contend that he has standing to pursue this cause of action apart from his 

Title VII claim. In other words, Mr. Young’s standing to pursue his equal protection 

claim requires he first prevail on his Title VII claim. Because he cannot do so, we 

analyze whether Mr. Young maintains independent standing to pursue an 

equal protection claim. 

Mr. Young has not pleaded sufficient facts to establish Article III standing to 

pursue his equal protection claim in the amended complaint because he did not plead 

an ongoing injury that a favorable judgment will redress. Mr. Young’s equal 

protection claim is based on the injury he purportedly suffered from having to view 

the EDI training. The relief he seeks is enjoining Defendants from using or 

promulgating the EDI training materials. But Mr. Young resigned from employment 

with the Department of Corrections before bringing this lawsuit, did not plead 

constructive discharge, and has not requested reinstatement as part of his 

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equal protection claim. Because he no longer works for the Department and he has 

not requested reinstatement as a remedy, any relief in the form of a change in 

Department policy will not redress an ongoing injury to him. 

Mr. Young contends an employee requesting reinstatement has standing to 

challenge his former employer’s policies. That is true in a narrow sense, but 

inapplicable given Mr. Young’s two causes of action. The authority Mr. Young 

points to does not hold that a plaintiff who lacks standing for one claim can bootstrap 

it to another claim for which he requests reinstatement. He relies on Robinson v. 

Blank for this bootstrapping proposition, but the plaintiff there brought a single Title 

VII claim—seeking as relief both reinstatement to his former job and a change to his 

former employer’s policy. No. 11 CIV. 2480 PAC DF, 2013 WL 2156040, at *1 

(S.D.N.Y. May 20, 2013). That is markedly different from Mr. Young’s complaint 

here: he brings one Title VII claim seeking reinstatement as relief and a separate and 

distinct equal protection claim seeking prospective relief. So “[Mr. Young] must 

demonstrate standing for each claim that [he] press[es].” TransUnion LLC v. 

Ramirez, 594 U.S. 413, 431 (2021). But, as the district court noted, “[t]here is 

simply no request for reinstatement that is appropriately tied to the equal protection 

claim as pleaded by [Plaintiff], and equally important, there is no nexus between any 

potential reinstatement and the relief he does seek.” Order at 25–26. 

We affirm the district court’s dismissal of Mr. Young’s equal protection claim. 

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C. Leave to Amend the Complaint 

In his response to the motion to dismiss, Mr. Young did not request leave to 

amend his complaint. Nor did he separately move to amend. Absent a request to 

amend, a district court may dismiss the action rather than sua sponte granting leave to 

amend. See Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 

F.3d 1228, 1236 (10th Cir. 2020); see also Calderon v. Kan. Dep’t of Soc. & Rehab. 

Servs., 181 F.3d 1180, 1186 (10th Cir. 1999) (“[A] court need not grant leave to 

amend when a party fails to file a formal motion.”). We review for abuse of 

discretion. See SCO Group, Inc., 879 F.3d at 1085. 

Mr. Young contends that he was unable to request leave to amend his 

complaint because, if he had done so, local rules permitted the district court to reject 

his response brief. But we see no insurmountable obstacle. Mr. Young could have 

filed a prophylactic motion for leave to amend that was separate from his response 

brief. Alternatively, Mr. Young could have identified additional proposed allegations 

that would have cured the amended complaint’s defects and moved the court to 

reconsider its dismissal order. 

 In its direction to the clerk of court to terminate the case, the district court 

noted that Mr. Young neither requested leave to amend in his briefing nor in a 

separate filing, thus communicating the rationale for its choice not to sua sponte 

grant leave to amend. Given the information it had at hand, the district court’s choice 

not to sua sponte grant leave to amend was not an abuse of discretion. 

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III. Conclusion 

For the reasons stated above, we affirm the district court’s dismissal of Mr. 

Young’s claims and the denial of leave to amend. 

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23-1063, Young v. Colorado Department of Corrections 

MATHESON, Circuit Judge, concurring: 

I concur in the result. I agree that the complaint did not plausibly allege the 

“severe or pervasive” element of a Title VII hostile work environment claim, that Mr. 

Young lacks standing for his § 1983 equal protection claim, and that the district court did 

not err in failing to grant sua sponte leave to amend. I do not think the court otherwise 

needs to comment on the EDI training or the potential for future legal challenges to it or 

other EDI programs, nor to address whether Mr. Young plausibly alleged the first three 

elements of the Title VII claim. I therefore do not join those parts of the opinion as 

unnecessary to resolve this case. 

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