Unless otherwise indicated, the following facts are drawn from the complaint 1

[Docket No. 14].

At the time, GEO was known as Wackenhut. 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02648-PAB-KLM

GUILLERMO H. GUTIERREZ,

Plaintiff,

v.

THE GEO GROUP, INC.,

Defendant.

ORDER

This matter is before the Court on defendant’s motion to dismiss [Docket No. 16]

plaintiff’s amended complaint [Docket No. 14]. The motion is fully briefed and ripe for

disposition.

I. BACKGROUND1

Plaintiff Guillermo H. Gutierrez began working for defendant The GEO Group,

Inc. (“GEO”) in 2001. Plaintiff has not alleged what position or positions he held while 2

working at GEO. Plaintiff, who is Hispanic, alleges that he and other minority

employees of GEO were treated more harshly than Caucasian employees of GEO for

the same or similar violations of company policies. 

As an example, plaintiff asserts that he was placed on leave without pay in June

2009 for taking time off, but that Caucasian officers who took time off were not similarly

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The complaint actually alleges that “Caucasian officers in [the] same or similar 3

position . . . were not disciplined under the same or similar circumstances.” Docket No.

14 at 2, ¶ 7. Although this allegation is not entirely clear, the Court interprets the

complaint as alleging that officers were, under the same or similar circumstances, not

disciplined in the same fashion as plaintiff.

Plaintiff does not identify Captain Harrison’s first name. Plaintiff indicates that 4

Captain Harrison is now a Major, but does not allege the nature of GEO’s business. 

GEO, however, represents that it operates a “private detention facility in Aurora,

Colorado, known as Aurora I.C.E. Processing Center.” Docket No. 16 at 1.

2

disciplined. Plaintiff complained about this disparity of discipline to his supervisors, 3

including Captain Harrison. Captain Harrison “reacted in a verbally and physically 4

aggressive manner toward Plaintiff,” including “slamm[ing] a letter of resignation down

in front of Plaintiff, demanding that Plaintiff resign.” Docket No. 14 at 2, ¶ 9.

In October 2009, plaintiff and Captain Harrison discussed the performance of a

particular Caucasian subordinate to plaintiff. Captain Harrison initially expressed

agreement with plaintiff’s comments. When plaintiff then raised the issue of disparate

treatment of officers based upon race, Captain Harrison threatened plaintiff by saying

they could “take it outside.” Docket No. 14 at 2-3, ¶ 10.

Plaintiff communicated his concerns regarding disparate treatment and Captain

Harrison’s conduct to other supervisors. Plaintiff was thereafter required to receive

counseling for allegedly making racial statements regarding Caucasian officers. 

Furthermore, plaintiff’s supervisors, including Captain Harrison, subjected plaintiff to

increased oversight, compiled negative reports about him, and denied him opportunities

to advance. Plaintiff’s supervisors and co-workers also “responded with insults,

comments, and aggressive or threatening actions.” Docket No. 14 at 3-4, ¶ 14. 

Captain Harrison was not disciplined.

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3

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) dated May 25, 2010. See Docket No. 16-1 at 1-2. On May 3,

2011, the EEOC issued plaintiff a Notice of Right to Sue. In his amended complaint

[Docket No. 14], plaintiff alleges that defendant discriminated against him on account of

his race and retaliated against him for protected activity in violation of Title VII of the

Civil Rights Act (“Title VII”), 42 U .S.C. § 2000e et seq. 

II. STANDARD OF REVIEW

“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence

that the parties might present at trial, but to assess whether the plaintiff’s Complaint

alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v.

Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In doing so,

the Court “must accept all the well-pleaded allegations of the complaint as true and

must construe them in the light most favorable to the plaintiff.” Alvarado v. KOB-TV,

L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quotation marks and citation omitted). At

the same time, however, a court need not accept conclusory allegations. Moffett v.

Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir. 2002).

Generally, “[s]pecific facts are not necessary; the statement need only ‘give the

defendant fair notice of what the claim is and the grounds upon which it rests.’” 

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)) (omission marks, internal quotation marks, and

citation omitted). The “plausibility” standard requires that relief must plausibly follow

from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales,

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GEO also argues that the Court is not empowered to resolve the merits of this 5

case because dismissal is appropriate pursuant to Federal Rule of Civil Procedure

12(b)(1). In support of that argument, GEO contends that plaintiff “failed to timely file

an EEOC charge regarding his claim and exhaustion of administration remedies is a

jurisdictional prerequisite to suit under Title VII.” Docket No. 16 at 4. Although it is the

general rule in the Tenth Circuit that a plaintiff must exhaust his administrative remedies

under Title VII for a court to have jurisdiction, not every defect in the administrative

process defeats jurisdiction. Because GEO’s exhaustion argument turns on the

timeliness of plaintiff’s charge of discrimination, it does not implicate the Court’s

jurisdiction. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) (“filing a

timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit

in federal court, but a requirement that, like a statute of limitations, is subject to waiver,

estoppel, and equitable tolling”); Peterson v. City of Wichita, Kan., 888 F.2d 1307, 1309

(10th Cir. 1989) (“although satisfying section 2000e–5(b) is a jurisdictional prerequisite

to enforcing an EEOC summons, filing a timely EEOC charge is indisputably not a

jurisdictional prerequisite to suit under Zipes”). 

4

534 F.3d 1282, 1286 (10th Cir. 2008).

However, “where the well-pleaded facts do not permit the court to infer more

than the mere possibility of misconduct, the complaint has alleged – but it has not

shown – that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679

(2009) (internal quotation marks and alteration marks omitted). Thus, even though

modern rules of pleading are somewhat forgiving, “a complaint still must contain either

direct or inferential allegations respecting all the material elements necessary to sustain

a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (quotation marks

and citation omitted).

III. DISCUSSION

GEO argues that plaintiff fails to allege sufficient facts to support his Title VII

claims of discrimination and retaliation. Title VII provides in pertinent part that it is an

5

“unlawful employment practice for an employer . . . to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

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See PVNF, 487 F.3d at 800 n.5 (“There exists some tension in our case law 6

regarding what a plaintiff must establish as part of his or her prima facie case of

discrimination. Some cases treat circumstances suggestive of discrimination as an

element of a prima facie case; other cases treat the surrounding circumstances as part

of the analytically subsequent inquiry into the employer’s stated reason for the

challenged action and the plaintiff’s opposing demonstration of pretext. Sorbo, 432

F.3d at 1173 & n.5 (listing cases). Regardless of whether we analyze the plaintiff’s

evidence ‘in reference to the prima facie case or the business justification versus

pretext inquiry, . . . if the court correctly concludes that the evidence of

discrimination/pretext fails as a matter of law, summary judgment for the defendant is

the proper result.’ Id. at 1173.”).

“While the 12(b)(6) standard does not require that Plaintiff establish a prima 7

facie case in her complaint, the elements of each alleged cause of action help to

determine whether Plaintiff has set forth a plausible claim. Thus, we start by discussing

the elements a plaintiff must prove to establish a claim for discrimination and retaliation

5

employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). “A

plaintiff proves a violation of Title VII either by direct evidence of discrimination or by

following the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973).” Khalik v. United Air Lines, 671 F.3d 1188, 1192 (10th Cir. 2012).

“Under McDonnell Douglas, a three-step analysis requires the plaintiff first prove

a prima facie case of discrimination.” Id. To make out a prima facie case of

discrimination, plaintiff must identify “evidence that (1) the victim belongs to a protected

class; (2) the victim suffered an adverse employment action; and (3) the challenged

action took place under circumstances giving rise to an inference of discrimination.” 

Equal Employment Opportunity Commission v. PVNF, L.L.C., 487 F.3d 790, 800 (10th

Cir. 2007) (citing Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005)).6

One way to demonstrate “circumstances giving rise to an inference of discrimination” is

to show that “the employer treated similarly situated employees more favorably.” 

Sorbo, 432 F.3d at 1173. 

7

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under Title VII and the FMLA.” Khalik, 671 F.3d at 1192 (citations omitted).

6

As noted above, plaintiff alleges that he was placed on leave without pay in June

2009 for taking time off but that Caucasian officers who took time off were not similarly

disciplined. Plaintiff also alleges that he “was denied promotional opportunities based

on his race, ethnicity, and/or perceived national origin.” Docket No. 14 at 3, ¶ 13. 

Plaintiff, however, alleges no facts in support of these conclusory assertions. The Court

finds that plaintiff’s “well-pleaded facts do not permit the court to infer more than the

mere possibility of misconduct,” and, therefore, “the complaint has alleged – but it has

not shown – that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal

quotation marks and alteration marks omitted). “While specific facts are not necessary,

some facts are.” Khalik, 671 F.3d at 1193 (quotation marks, alteration, and citation

omitted). Because plaintiff recites that he was treated less favorably than similarly

situated Caucasian employees and was not promoted because of his race, but offers

not a single fact supporting these conclusory statements, the Court will dismiss

plaintiff’s Title VII claim for discrimination. See Iqbal, 556 U.S. at 663 (“[T]he tenet that

a court must accept a complaint’s allegations as true is inapplicable to threadbare

recitals of a cause of action’s elements, supported by mere conclusory statements.”);

cf. Khalik, 671 F.3d at 1194 (“While we do not mandate the pleading of any specific

facts in particular, there are certain details the Plaintiff should know and could properly

plead to satisfy the plausibility requirement.”).

Turning to plaintiff’s retaliation claim, Title VII prohibits an employer from

retaliating against an employee “because he has opposed any practice made an

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7

unlawful employment practice by” Title VII. 42 U.S.C. § 2000e-3(a). “In order to

establish a prima facie case of retaliation, Plaintiff[] must show that ‘(1) that he engaged

in protected opposition to discrimination, (2) that a reasonable employee would have

found the challenged action materially adverse, and (3) that a causal connection

existed between the protected activity and the materially adverse action.’” Somoza v.

University of Denver, 513 F.3d 1206, 1212 (10th Cir. 2008) (quoting Argo v. Blue Cross

& Blue Shield of Kan., Inc., 452 F.3d 1193, 1202 (10th Cir. 2006)). 

GEO argues that plaintiff has not alleged facts sufficient to show that he suffered

a materially adverse employment action. “An adverse employment action includes acts

that constitute a significant change in employment status, such as hiring, firing, failing to

promote, reassignment with significantly different responsibilities, or a decision causing

a significant change in benefits.” Dick v. Phone Directories Co., Inc., 397 F.3d 1256,

1268 (10th Cir. 2005) (quotation marks, alteration, and citations omitted). These acts

do not constitute an exhaustive list of potential materially adverse employment actions.

See Hillig v. Rumsfeld, 381 F.3d 1028, 1033 (10th Cir. 2004). The Court must “liberally

interpret the second prong of the prima facie case and take a case-by case approach.” 

Dick, 397 F.3d at 1268. The Court should ask whether the alleged conduct was

“harmful to the point that they could well dissuade a reasonable worker from making or

supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. v. White, 548 U.S.

53, 57 (2006). However, the Court “will not consider ‘a mere inconvenience or an

alteration of job responsibilities’ to be an adverse employment action.” Sanchez v.

Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998) (citation omitted).

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Plaintiff also alleges that this instance was one “[a]mong other specific acts” 8

taken by Captain Harrison. Docket No. 14 at 2, ¶ 9. Plaintiff, however, does not allege

any other acts taken by Captain Harrison in response to his complaints about disparate

treatment in the summer of 2009.

8

Plaintiff alleges that, when he complained to Captain Harrison about disparate

treatment relating to his June 2009 leave without pay, Captain Harrison “slammed a

letter of resignation down in front of Plaintiff, demanding that Plaintiff resign.” Docket

No. 14 at 2, ¶ 9. Plaintiff apparently did not sign the letter and was not terminated, and 8

there are no allegations that support the inference that this single instance was, or

resulted in, a materially adverse employment action. See Dick v. Phone Directories

Co., Inc., 397 F.3d 1256, 1268 (10th Cir. 2005) (“[W]e have never expressly held that

an unrealized threat of termination, without more, constitutes an adverse employment

action.”); cf. Martin v. Sears, Roebuck and Co., No. 08-cv-01998-MSK-KMT, 2009 WL

4730466, at *9 (D. Colo. Dec. 7, 2009) (“A number of 10th Circuit decisions have found

that although disciplinary notices can constitute adverse employment actions, a single

notice that chastises an employee for some particular action and threatens increased

discipline in the future, without more, does not rise to the level of an adverse action

sufficient to support a retaliation claim.”).

Plaintiff also alleges that, after he raised the issue of racial discrimination in

October 2009, Captain Harrison threatened him with physical harm by challenging

plaintiff to “take it outside.” Docket No. 14 at 2-3, ¶ 10. While such a statement is

unprofessional and inappropriate, plaintiff does not allege facts indicating what, if

anything, ever came of Captain Harrison’s outburst that would constitute a materially

adverse employment action. See Samuels v. Potter, 372 F. App’x 906, 908 (10th Cir.

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Samuels, 372 F. App’x at 908 (“[T]his court has acknowledged on numerous 9

occasions that the anti-discrimination laws do not license courts to police the workplace

for each and every deviation from social standards of proper interpersonal conduct. In

the context of alleged retaliation, we have repeatedly held that, unless pervasive,

incidents of rudeness, ridicule, unruly behavior, and angry outbursts allegedly prompted

by past complaints are not sufficient to satisfy the material-adversity standard. . . . The

push to the back of his shoulder may have taken the incident a step further, but not

enough to cross the line and raise a triable issue of material adversity.”).

9

2010) (“We certainly do not discount the impropriety of any unwanted physical contact

in the workplace, but propriety per se is not the inquiry here. Rather, we must ask

whether the contact alleged might well have dissuaded a reasonable worker from

complaining about discrimination. On that score, we agree with the district court that a

triable issue was not made out on our record.”) (footnotes omitted). 

9

Plaintiff alleges that he informed other supervisors about his concerns regarding

disparate treatment as well as about Captain Harrison’s response to his complaints. 

See Samuels, 372 F. App’x at 908-09 (“The other point, emphasized by the district

court, is that Mr. Samuels kept up his workplace complaints following the alleged

altercation. While this alone is not, of course, dispositive of the objective

material-adversity inquiry, it does ‘shed light as to whether the [employer’s] actions are

sufficiently material and adverse to be actionable.’”) (citation omitted). Plaintiff alleges

that, “[a]fterward,” he was “ordered to undergo counseling for allegedly making a racial

statement about all the Caucasian officers on the East Core of the GEO facility.” 

Docket No. 14 at 3, ¶ 11. Plaintiff, however, does not allege that the unidentified

person or people who ordered him to undergo counseling did not do so because of

alleged racial comments made by him. 

Plaintiff does allege that he was thereafter subject to “increased scrutiny and

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10

criticism on a day-to-day basis” and that Captain Harrison and other supervisors

“compil[ed] negative reports on Plaintiff that impacted Plaintiff’s standing in the

company’s progressive disciplinary and promotional system.” Docket No. 14 at 3, ¶ 12. 

Plaintiff alleges that he “was denied promotional opportunities based on . . . the animus

of the supervisors arising from Plaintiff’s complaints about discrimination.” Docket No.

14 at 3, ¶ 13. Plaintiff also believes supervisors spoke about plaintiff in a “derogatory

manner” and discussed “ways to get rid of Plaintiff.” Docket No. 14 at 3, ¶ 12. Plaintiff

further alleges that, “[w]hen the issue of race, ethnicity, and/or perceived national originrelated preferential treatment was raised by Plaintiff, supervisors and coworkers

responded with insults, comments, and aggressive or threatening actions.” Docket No.

14 at 3-4, ¶ 14.

These allegations merely identify categories of mistreatment by largely

unidentified individuals. Moreover, plaintiff fails to allege any facts that support the

inference that he suffered such mistreatment. For example, he asserts generally that

he was subjected to additional scrutiny, criticism, negative reports, or derogatory

conversations, but the complaint lacks factual allegations indicating when such

incidents occurred, who subjected him to such conduct, and what conduct specifically

occurred. Moreover, plaintiff fails to allege a single instance of being denied a

promotion. And, while plaintiff alleges that he was subjected to “insults, comments, and

aggressive or threatening actions,” the complaint contains no facts regarding conduct

that would constitute materially adverse employment actions. See Docket No. 14 at 3-

4, ¶ 14 (providing the following single example: “Among other things, Plaintiff was called

‘Poncho.’”); see also Dick, 397 F.3d at 1269 (“Coworker hostility or retaliatory

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Although plaintiff does not appear to be asserting a hostile work environment 10

claim, the Court notes that the complaint also fails to allege facts indicating that “the

workplace is permeated with discriminatory intimidation, ridicule, and insult, that is

sufficiently severe or pervasive to alter the conditions of the [plaintiff’s] employment and

create an abusive working environment.” Davis v. U.S. Postal Serv., 142 F.3d 1334,

1341 (10th Cir. 1998) (internal citations and quotations omitted). 

Cf. Khalik v. United Air Lines, No. 10-cv-01490-DME-MJW, 2010 WL 5068139, 11

at *3 (D. Colo. Dec. 7, 2010) (“Plaintiff’s allegation that ‘[s]he was physically assaulted

in the office . . . after being subjected to a false investigation and false criticism of her

work,’ and that she was ‘targeted’ for this treatment because of her race, religion, and

national origin, is conclusory and speculative. Plaintiff does not state when these

alleged wrongful actions occurred, what the circumstances were, or the identity of the

perpetrator(s), which might be important in determining whether United could even be

held responsible for these wrongdoings. Plaintiff also does not intimate why she

believes that her race, religion, or national origin motivated the actions.”) (citation

omitted), aff’d by 671 F.3d 1188 (10th Cir. 2012).

11

harassment may be an ‘adverse employment action’ if it is sufficiently severe.”). Such 10

“unadorned, the-defendant-unlawfully-harmed -me accusation[s]” are insufficient to

state a viable claim for relief. Iqbal, 556 U.S. at 678.11

Because plaintiff fails to allege facts sufficient to support the inference that he

suffered a materially adverse employment action, the Court need not reach GEO’s

argument that plaintiff offers nothing more than bare conclusions in support of the

causal connection between the protected activity and any alleged adverse actions.

IV. CONCLUSION

For the foregoing reasons, it is

ORDERED that defendant’s motion to dismiss [Docket No. 16] and unopposed

motion for leave to submit supplemental authority in support of its motion for dismissal

[Docket No. 24] are GRANTED. This case shall be dismissed in its entirety.

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12

DATED June 6, 2012.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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