Appellate Case: 23-1063 Document: 010111013325 Date Filed: 03/11/2024 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 11, 2024
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
JOSHUA F. YOUNG,
Plaintiff - Appellant,
v. No. 23-1063
COLORADO DEPARTMENT OF CORRECTIONS; DEAN WILLIAMS; JILL HUNSAKER RYAN,
Defendants - Appellees. _________________________________
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, Appellate Case: 23-1063 Document: 010111013325 Date Filed: 03/11/2024 Page: 2
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 race-
based 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 History 1
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 co-
workers 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 co-
workers 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 day-
to-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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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.