IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11–cv–02571–WJM–KMT

BABAJIDE A. SHITTU,

Plaintiff,

v. 

AMREST, LLC, 

Defendant.

______________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Kathleen M. Tafoya

This case comes before the court on “Defendant’s Motion for Summary Judgment” (Doc.

No. 30, filed December 14, 2012). Plaintiff did not file a response. This motion is ripe for

recommendation and ruling. 

I. STATEMENT OF THE CASE

Plaintiff has sued Defendant Amrest, LLC, alleging the defendant discriminated against

him, in violation of Title VII of the Civil Rights Act of 1964, because of his race, color, national

origin, and religion. (Doc. No. 6 [Compl].) In March 2008, Plaintiff began working as a line

cook at an Applebee’s restaurant operated by the defendant. (Id. at 3, ¶ 1.) Plaintiff alleges in

approximately September 2009, Orren Wescott, the bar manager of the restaurant, began

humiliating and taunting Plaintiff. (Id., ¶ 2.) Plaintiff alleges the “humiliation and

discriminatory behavior continued for over a year.” (Id.) In approximately September 2010,

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Plaintiff complained to Ms. McKenzie, the general manager, “regarding the offensive behavior

Mr. Wescott continued to direct towards me, and the fact that other employees had also begun

engaging in the same type of abominable behavior.” (Id., ¶ 3.) Plaintiff states his direct

supervisor, Adam Burd, attempted to hold a meeting with Plaintiff and Wescott, but Wescott

refused to meet with Plaintiff. (Id., ¶ 5.) Plaintiff alleges after he complained to McKenzie,

Wescott retaliated against him by berating him and making it difficult for him to perform his job. 

(Id., ¶ 6.) On October 26, 2011, Wescott fired Plaintiff. (Id., ¶ 7.) 

II. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate if “the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

The moving party bears the initial burden of showing an absence of evidence to support the

nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). “Once the moving

party meets this burden, the burden shifts to the nonmoving party to demonstrate a genuine issue for

trial on a material matter.” Concrete Works, Inc. v. City & County of Denver, 36 F.3d 1513, 1518

(10th Cir. 1994) (citing Celotex, 477 U.S. at 325). The nonmoving party may not rest solely on the

allegations in the pleadings, but must instead designate “specific facts showing that there is a

genuine issue for trial.” Celotex, 477 U.S. at 324; see also Fed. R. Civ. P. 56(c). A disputed fact

is “material” if “under the substantive law it is essential to the proper disposition of the claim.”

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir.1998) (citing Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the evidence is such that it might lead a

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reasonable jury to return a verdict for the nonmoving party. Thomas v. Metropolitan Life Ins. Co.,

631 F.3d 1153, 1160 (10th Cir. 2011) (citing Anderson, 477 U.S. at 248).

When ruling on a motion for summary judgment, a court may consider only admissible

evidence. See Johnson v. Weld County, Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The

factual record and reasonable inferences therefrom are viewed in the light most favorable to the

party opposing summary judgment. Concrete Works, 36 F.3d at 1517. Moreover, because Plaintiff

is proceeding pro se, the court, “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) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings

drafted by lawyers”). At the summary judgment stage of litigation, a plaintiff’s version of the facts

must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).

“When opposing parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that version of the facts

for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380

(2007); Thomson, 584 F.3d at 1312.

III. ANALYSIS

Defendants move for summary judgment on the bases that 1) Plaintiff failed to perfect

service of the Complaint on Defendant, and therefore this Court lacks jurisdiction; 2) Plaintiff’s

claim of color discrimination must be dismissed because Plaintiff filed to exhaust his

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administrative remedies; 3) the Farager/Ellerth affirmative defense bars Plaintiff’s harassment

claims; and 4) Plaintiff cannot establish a claim of retaliation. 

A. Failure to Perfect Service Under Fed. R. Civ. P. 4(m)

Rule 4 of the Federal Rules of Civil Procedure requires a plaintiff to serve a Summons

and a copy of the Complaint on the Defendant within 120 days of filing the Complaint, lest the

action be dismissed for lack of jurisdiction. See Fed. R. Civ. P. 4(c)(1), (m); Fresquez v.

Jefferson County, 469 F. App’x 703, 706 (10th Cir. 2012) (“This Court demands strict

compliance with the requirements of Rule 4(c)(1), even from pro se litigants.”) 

Plaintiff filed his Original Complaint on September 30, 2011. (Doc. No. 1.) On October

3, 2011, Magistrate Judge Boyd N. Boland ordered Plaintiff to amend his complaint using the

Court’s proper Title VII Complaint form. (Doc. No. 3.) Plaintiff filed his first amended

complaint on October 14, 2011, and failed to use the Court’s approved form. (Doc. No. 4.) On

October 18, 2011, Magistrate Judge Boland again ordered Plaintiff to file an amended complaint

using the court-approved Title VII Complaint form. (Doc. No. 5.) Plaintiff filed his Title VII

Complaint on the proper form on October 27, 2011. (Doc. No. 6.) Magistrate Judge Boland

approved the Title VII Complaint and ordered that it be drawn to a district judge and a

magistrate judge. (Doc. No. 8.) 

In October 2011, Plaintiff, through the United States Marshals Service, attempted to

serve Defendant at the wrong business address and was unable to effect proper service within

120 days. (Doc. No. 12.) On March 28, 2012, this court issued an Order to Show Cause to

Plaintiff regarding his failure to serve the defendant with the Amended Complaint within 120

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Because Plaintiff filed his Title VII Complaint on October 27, 2011, under Rule 4(m)

Plaintiff was required to serve the defendant on or before February 24, 2012. If the court

considers the date of filing as the November 7, 2011—the date on which his Title VII Complaint

was approved and drawn to District Judge William J. Martínez and Magistrate Judge Kathleen

M. Tafoya—Plaintiff still was required to serve the defendant on or before March 6, 2012. Thus,

he was granted at least a fifty-nine-day extension of time to serve the defendant. 

2

The first two pages of the Title VII Complaint served on Defendant include the PDF

header used by this Court. The remainder of the pages do not include the PDF header. 

5

days, as is required by Rule 4(m). (Doc. No. 13.) Plaintiff responded that he was unaware that

Defendant had not been served. (Doc. No. 14.) This court found Plaintiff had shown good cause

for his failure to serve the defendant, discharged the Order to Show Cause, and allowed Plaintiff

an extension to May 4, 20121

, either to provide the Court with an alternate address at which the

defendant could be served by the United States Marshals Service or to serve the defendant on his

own pursuant to Rule 4. (Doc. No. 15.) 

On May 2, 2012, Plaintiff used a private process server to serve the defendant with a

Summons and a document purporting to be the Title VII Complaint. (Doc. No. 16). However,

the complaint served on the defendant was not the Title VII Complaint (Doc. No. 6) approved by

Magistrate Judge Boland and filed in this Court. (See Doc. No. 30-1, Attach. 1 [Dickey Decl.], ¶

6 & Att. A.) Instead, the document Plaintiff served on the defendant included the first two pages

of the Title VII Complaint (see Doc. No. 30-1 at 7–8) and three pages taken from his original

rejected complaint filed on September 30, 2011 (compare Doc. No. 1 at 3–5 with Doc. No. 30-1

at 9–11 and Doc. No. 6 at 3–4).2

 Defendant notified Plaintiff of his improper service in its First

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Affirmative Defense in its Answer and in the Proposed Scheduling Order. (See Doc. No. 17 at 1;

Doc. No. 26 at 6.) 

The undisputed evidence shows that Plaintiff did not serve the defendant with the

operative and proper Title VII Complaint. Rule 4(m) authorizes the Court to dismiss a party’s

case for his failure to timely serve a summons and complaint unless the party can show good

cause for his failure. In this case, Plaintiff already has been afforded the court’s leniency for

non-compliance with Rule 4(m). It appears Plaintiff then willfully substituted three pages of the

court-approved Title VII Complaint with pages of a complaint that had specifically been rejected

by Magistrate Judge Boland and served defendant with the incorrect complaint. Plaintiff has

failed to respond to the Motion for Summary Judgment or to provide good cause for his failure to

serve the defendant with the proper Title VII Complaint. 

“A plaintiff who has failed to show ‘good cause’ for a mandatory extension of time may

still be granted a permissi[ve] extension of time within the district court’s discretion.” Espinoza

v. United States, 52 F.3d 838, 841 (10th Cir. 1995). When considering whether such a

permissive extension should be granted the court should consider several factors, namely the

advisory committee notes to Rule 4(m), in determining whether dismissal is appropriate. Id. at

842. The applicable factor in this case states, “[r]elief may be justified . . . if the applicable

statute of limitations would bar the refiled action.” Id. (quoting Fed. R. Civ. P. 4(m) advisory

committee’s note (1993)). 

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On July 8, 2011, the EEOC sent plaintiff his right to sue letter. (See Doc. No. 6 at 2, ¶ 7.) 

Therefore, the statute of limitations for Plaintiff’s claims expired on October 6, 2011, or 90 days

after his receipt of the EEOC notification. 42 U.S.C. § 2000(e)–5(f)(1); Brown v.

Hartshorne Pub. Sch. Dist., 926 F.2d 959, 961 (10th Cir. 1991). Plaintiff filed this case on the

84th day, or September 30, 2011. (Doc. No. 1.) Accordingly, the limitations period has now run

on Plaintiff’s claims. 

Even though dismissal under Rule 4(m) would effectively time bar plaintiffs claims, the

court finds that an additional permissive extension of time is not warranted and that dismissal is

appropriate. Despite the fact that Plaintiff has had notice of his failure to serve the defendant

with the proper complaint, he has failed to request an additional extension of time within which

to serve the proper complaint. Plaintiff failed to serve the defendant within the 120 days

required by Rule 4(m) and was already given a lengthy extension of time to serve the defendant

with the Title VII Complaint. Plaintiff then failed to serve the defendant with the operative and

court-approved Title VII Complaint, instead choosing to substitute portions of a previouslyrejected complaint and serve that on the defendant. Plaintiff has failed to provide any

justification for his failure to serve the defendant with the proper complaint. This case has been

pending since September 30, 2011, and relates to alleged employment discrimination that

occurred in 2009 and 2010. The court finds that the defendant should not be prejudiced by being

forced to litigate a case that would otherwise be barred for noncompliance with the federal rules. 

Plaintiff has failed to prove proper service on the defendant and has therefore not

obtained personal jurisdiction on the defendant within the time permitted, Defendant is entitled

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to summary judgment, and Plaintiff’s case should be dismissed with prejudice. See Womble v.

Salt Lake City Corp., 84 F. App’x 18, 20–21 (10th Cir. 2003) (quoting Putnam v. Morris, 833

F.2d 903, 904–05 (10th Cir. 1987)) (finding failure to serve in accordance with Rule 4(m) and

outside the statute of limitations operates as a dismissal with prejudice).

Because this court recommends summary judgment be granted in favor of the defendant

for Plaintiff’s failure to perfect service under Rule 4(m), and because any further attempts to

refile the case would be barred as outside the statute of limitations period, it need not address

Defendant’s remaining arguments. 

WHEREFORE, for the foregoing reasons, the court respectfully

RECOMMENDS on “Defendant’s Motion for Summary Judgment” (Doc. No. 30) be

GRANTED, and that Plaintiff’s claims be DISMISSED with prejudice. 

ADVISEMENT TO THE PARTIES

Within fourteen days after service of a copy of the Recommendation, any party may

serve and file written objections to the Magistrate Judge’s proposed findings and

recommendations with the Clerk of the United States District Court for the District of Colorado. 

28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A

general objection that does not put the district court on notice of the basis for the objection will

not preserve the objection for de novo review. “[A] party’s objections to the magistrate judge’s

report and recommendation must be both timely and specific to preserve an issue for de novo

review by the district court or for appellate review.” United States v. One Parcel of Real Prop.

Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to

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make timely objections may bar de novo review by the district judge of the magistrate judge’s

proposed findings and recommendations and will result in a waiver of the right to appeal from a

judgment of the district court based on the proposed findings and recommendations of the

magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court’s

decision to review a magistrate judge’s recommendation de novo despite the lack of an objection

does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at

1059-60 (a party’s objections to the magistrate judge’s report and recommendation must be both

timely and specific to preserve an issue for de novo review by the district court or for appellate

review); Int’l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir.

1995) (by failing to object to certain portions of the magistrate judge’s order, cross-claimant had

waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342,

1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal

the magistrate judge’s ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th

Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).

Dated this 27th day of February, 2013.

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