IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02293-PAB-KLM

KEVIN JACKSON,

Plaintiff,

v.

CITY AND COUNTY OF DENVER and

DENVER POLICE DEPARTMENT,

Defendants.

ORDER

This matter is before the Court on the Motion to Dismiss [Docket No. 10] filed by

defendants, the City and County of Denver and the Denver Police Department. In their

motion, defendants only request that the Court dismiss plaintiff’s state law claims. 

Plaintiff has not filed a response. 

On August 31, 2011, plaintiff filed a complaint [Docket No. 1] asserting three

claims for relief against defendants. Plaintiff alleges that he was subject to (1)

discrimination based on race in violation of Title VII of the Civil Rights Act 1964 (“Title

VII”), 42 U.S.C. § 2000e et seq., (2) retaliation in violation of Title VII, and (3) illegal

employment practices based on gender in violation of the Colorado Anti-Discrimination

Act (“CADA”), Colo. Rev. Stat. § 24-34-401 et seq. Docket No. 1 at 4-6. According to

the complaint, plaintiff filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) and received a notice of right to sue on June 3,

2011. Docket No. 1 at 2, ¶ 8-9.

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Defendants argue that plaintiff’s CADA claim should be dismissed because (1)

CADA does not provide relief for individual plaintiffs, and (2) plaintiff failed to exhaust

administrative remedies. Docket No. 10 at 3-4. Defendants claim that, because

plaintiff seeks monetary damages, his request for relief is beyond the scope of available

remedies under CADA. Id. at 4. In the alternative, defendants assert that plaintiff’s

CADA claim must be dismissed because he failed to file a charge of discrimination with

the Colorado Civil Rights Division (“CCRD”). Id. at 4. Defendants contend that Colo.

Rev. Stat. § 24-34-306(14) requires a plaintiff to exhaust administrative remedies and

that plaintiff’s failure to exhaust strips the Court of subject matter jurisdiction. Id. at 4-5. 

I. STANDARD OF REVIEW

In their motion, defendants invoke Rule 12(b)(1) of the Federal Rules of Civil

Procedure. Dismissal pursuant to Rule 12(b)(1) is appropriate if the Court lacks subject

matter jurisdiction over claims for relief asserted in the complaint. Rule 12(b)(1)

challenges are generally presented in one of two forms: “[t]he moving party may (1)

facially attack the complaint’s allegations as to the existence of subject matter

jurisdiction, or (2) go beyond allegations contained in the complaint by presenting

evidence to challenge the factual basis upon which subject matter jurisdiction rests.” 

Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004)

(quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)). When resolving a

facial attack on the allegations of subject matter jurisdiction, the Court “must accept the

allegations in the complaint as true.” Holt v. United States, 46 F.3d 1000, 1002 (10th

Cir. 1995). To the extent the defendant attacks the factual basis for subject matter

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jurisdiction, the Court “may not presume the truthfulness of the factual allegations in the

complaint, but may consider evidence to resolve disputed jurisdictional facts.” SK

Finance SA v. La Plata Cnty., 126 F.3d 1272, 1275 (10th Cir. 1997). “Reference to

evidence outside the pleadings does not convert the motion to dismiss into a motion for

summary judgment in such circumstances.” Id. Ultimately, and in either case, plaintiff

has “[t]he burden of establishing subject matter jurisdiction” because it is “the party

asserting jurisdiction.” Port City Props. v. Union Pac. R.R. Co., 518 F.3d 1186, 1189

(10th Cir. 2008). Defendants’ motion is a facial attack on the sufficiency of the

complaint’s allegations as to the Court’s subject matter jurisdiction. 

II. ANALYSIS

In Brooke v. Rest. Servs., Inc., 906 P.2d 66 (Colo. 1995), the Colorado Supreme

Court held that, before an individual can assert a claim under CADA, he must first

exhaust administrative remedies for all claims brought pursuant to the Act. Id. at 72;

Colo. Rev. Stat. § 24-34-306(14). Under CADA, a plaintiff exhausts administrative

remedies when he obtains a notice of right to sue from the CCRD. Colo. Rev. Stat.

§ 24-34-306(15); see also City of Colo. Springs v. Conners, 993 P.2d 1167, 1169 n.3

(Colo. 2000) (“As a condition precedent to bringing an action in district court, a party

must exhaust her administrative remedies available under the CRA [now CADA], and a

right-to-sue letter will often serve as evidence that a party complied with this

requirement.”) (citation omitted). Plaintiff here does not allege that he has received a

notice of right to sue from the CCRD. See Docket No. 1. Additionally, by failing to

respond to the motion to dismiss, plaintiff concedes that he has failed to exhaust his

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In Colorado, the EEOC and the CCRD have entered into a workshare 1

agreement whereby each agency acts as the other’s agent for the purpose of receiving

and drafting employment discrimination charges. See Rodriguez v. Wet Ink, LLC, 603

F.3d 810, 813 (10th Cir. 2010). Although the workshare agreement clearly envisions

initial cooperation between the two agencies, the agreement “does not include the right

of one Agency to determine the jurisdiction of the other Agency over a charge.” Id. at

813 (emphasis in original). In Rodriguez, the Tenth Circuit held that, under the

workshare agreement, the EEOC retains sole authority to terminate its own jurisdiction. 

Id. Because the Tenth Circuit held that a CCRD a notice of right to sue does not strip

the EEOC of jurisdiction over federal discrimination claims, the Court finds that an

EEOC right-to-sue letter does not strip the CCRD of jurisdiction over CADA claims. 

See id. at 814 (noting that other courts conclude that “a state agency’s right-to-sue

notice does not trigger the federal filing period and vice versa.”); cf. Mitchell-Carr v.

McLendon, 980 P.2d 65, 70-71 (N.M. 1999) (finding that, under New Mexico’s

workshare agreement, a right-to-sue letter from the EEOC does not exhaust the

administrative remedies under the New Mexico Human Rights Act). Accordingly,

without a notice of right to sue from the CCRD, the Court finds that plaintiff has not

sufficiently alleged that he exhausted administrative remedies for his CADA claim. 

Colo. Rev. Stat. § 24-34-306(14).

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administrative remedies. See United States ex. rel Trujillo v. Group 4 Falck, 244 F.

App’x 853, 855 (10th Cir. 2007) (upholding district court’s decision to grant a motion to

dismiss because plaintiff failed to provide evidence that he exhausted administrative

remedies when he did not reply to the motion). Accordingly, accepting all the wellpleaded allegations in the complaint as true, the Court will grant defendants’ motion to

dismiss because plaintiff has failed to exhaust administrative remedies for his CADA

claim.1

Therefore, it is 

ORDERED that Defendants’ Motion to Dismiss Plaintiff’s State Law Claims

[Docket No. 10] is GRANTED. It is further

ORDERED that plaintiff’s third claim for relief pursuant to Colo. Rev. Stat.

§ 24-34-402 is hereby dismissed. 

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DATED September 24, 2012.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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