Labor & Employment Law Daily Wrap Up, DISCRIMINATION—RACE—D. Colo.: White corrections officer again cannot advance HWE claims based on DEI training, (Jan 29, 2025)

By Kathleen Kapusta, J.D.

The officer’s allegation the “trainings created a dangerous atmosphere where a failure to adhere to racism and race-based differential treatment could... result in... discipline for failure to abide by the training,” was conclusory.

Allegations by a white Colorado Department of Corrections officer that he believed a mandatory DEI training would occur annually, that CDOC employees were expected to live up to their trainings, that his colleagues started leveraging the training against him in order to promote racist beliefs, and that he was subjected to regular insults by prisoners, which he expected to escalate, were not sufficient to plausibly allege a Title VII race-based hostile work environment, a federal court in Colorado held. Granting the CDOC’s motion to dismiss, the court explained that, while his allegations went to his own subjective reaction to the training, he did not allege sufficient objective facts about his workplace to show it would be deemed hostile by a reasonable employee under the same circumstances (Young v. Colorado Department of Corrections, No. 23-cv-01688-NYW-SBP (D. Colo. Jan. 27, 2025)).

In February 2021, the CDOC announced that it was requiring its employees to take mandatory DEI training consisting of several computer modules. The corrections officer, who took the training a month later, claimed it began with a review of glossary terms, such as white fragility and white supremacy, that targeted Caucasian employees specifically. He also claimed the training “directed further insults at Caucasians” in that it “defined cultural appropriation” by “noting its occurrence is based on white dominance.”

The training materials, he further asserted, “were racially discriminatory and motivated by invidious racial stereotypes” and allegedly demeaned and stigmatized him other white employees. He also alleged that the training caused him to change his behavior at work as he was worried that he would be accused of racism if he had to search certain prison visitors or use force against prisoners. After his internal complaint regarding the training was denied, the officer resigned.

Procedural background. He filed a lawsuit against the CDOC based on the training, asserting a hostile work environment claim and a Fourteenth Amendment equal protection claim. The court dismissed his claims without prejudice and the officer appealed to the Tenth Circuit. While that appeal was pending, he filed this case, which the court administratively closed pending resolution of his appeal.

After the Tenth Circuit affirmed the dismissal of his first lawsuit, the court reopened this case and the officer filed an amended complaint, which he claimed tracked the Tenth Circuit’s guidance laying out “markers” on how his claims could proceed.

Hostile work environment. In response to the Tenth Circuit’s observation that, among other things, he did not allege the training occurred more than once, the officer, in his amended complaint, alleged that “all trainings at the Department of Corrections occurred annually” and that he “expected and knew that EDI training would recur annually, as with... other training.” But this, said the court, did not plausibly allege an “ongoing, continuing commitment” from the CDOC to mandatory DEI trainings and, as the Tenth Circuit observed, “the single training session here is not enough,” without more, to constitute a hostile work environment.

And while the officer argued that the DEI training “constituted official acts of” the CDOC, which made it more severe, he failed to allege any facts plausibly establishing an objectively severe hostile work environment, said the court.

Compelled belief. In response to the Tenth Circuit’s statement that “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,” the officer alleged that CDOC employees were expected to live up to their training while at work; that the training was meant to be taken seriously; that his supervisors repeatedly emphasized the importance of faithfully taking trainings and abiding by those trainings; and that he and his coworkers “understood that they were obligated to take the training and adhere to it.”

But allegations CDOC employees were generally expected to take their trainings seriously and abide by them were not enough, in the court’s view, to plausibly allege that the officer and his coworkers were required, as a condition of their employment, to endorse any particular belief or ideology related to the DEI training. He did not allege he was required to change his beliefs to mirror the messages conveyed in the training or risk losing his job, or that his supervisors threatened to punish employees who failed to complete or agree with the training materials.

As to his allegations the highest officials in the CDOC insisted that employees live by the trainings and that he was told he had to comply with the training as a condition of his ongoing employment, he did not identify who made these statements or how and when the messages were conveyed. “At bottom,” said the court, “these allegations are simply ‘naked assertion[s] devoid of further factual enhancement’” that do not “‘raise a right to relief above the speculative level.’”

Leveraged the training. The officer also alleged that “[h]is colleagues started leveraging the training against him, in order to promote racist beliefs against” him and that he “was subjected to regular insults by prisoners related to race, and he expected the insults to keep escalating.” He claimed that he “felt isolated, and unable to do exactly what the training insisted that he do,” that he “lost confidence in his core purpose as an employee,” and that he “perceived that the training was already affecting personnel decisions within the CDOC.” These allegations about his subjective feelings, however, did not contain facts alleging or detailing how the training actually impacted his workplace.

And while the officer also argued that he was subjected to regular race-related insults by prisoners, which he expected to escalate, he referenced only a single incident in his complaint that occurred before the training and thus, the court observed, he did not provide context into what he experienced in the workplace due to the DEI training. Nor did he provide any insight into whether and how the training actually affected his workplace or cite any example of a race-based comment directed at him after the CDOC introduced the training.

“In sum,” said the court, “while Plaintiff may have sufficiently alleged that the EDI training interfered with his work performance based on his subjective reaction to it, he does not allege sufficient objective facts about his workplace to establish that his workplace ‘would be deemed hostile by a reasonable employee under the same or similar circumstances.’”

Not physically threatening. Turning finally to the officer’s allegation the training created a dangerous work environment because it took place in the prison context, the court acknowledged the relevance of the context or setting of a workplace. It again pointed out, however, that the officer’s allegations went to his own subjective reaction to his training and how the training affected his work performance. “And even taking these allegations as true—that the EDI training affected how Plaintiff performed his job and that Plaintiff’s hesitancy could have created an unsafe working environment—they are insufficient by themselves,” said the court, “to plausibly allege that the workplace was so permeated with discriminatory ridicule and harassment that a reasonable employee would view the workplace as hostile, given the deficiencies addressed above.”

Constructive discharge. For similar reasons, the court found the officer also failed to plausibly allege a constructive discharge claim.

The case is No. 23-cv-088-NYW-SBP.

Judge: Wang, N.

Attorneys: David C. McDonald (Pacific Legal Foundation) for Joshua F. Young. Kerry J. Ferrell, Colorado Attorney General's Office, for Colorado Department of Corrections.

Cases: RaceDiscrimination Discrimination PublicEmployees ESGNews ColoradoNews GCNNews