Summaries of Selected Opinions, 0222 COBJ, Vol. 51, No. 2 Pg. 74

PositionVol. 51, 2 [Page 74]

51 Colo.Law. 74

Summaries of Selected Opinions

No. Vol. 51, No. 2 [Page 74]

Colorado Lawyer

February, 2022


Summaries of Selected Opinions

No. 21-4007. Reznik v. in Contact, Inc.

12/1/2021. D.Utah. Judge Kelly. Title VII Retaliation—Motion to Dismiss for Failure to State a Claim—Subjective Good Faith Belief—Objectively Reasonable Belief—Test for Objective Reasonableness.

Plaintiff worked as director of project management for defendant in Contact, Inc., a corporation providing cloud-based services to companies using call centers. Plaintiff received complaints from two native Filipino employees working in the company's Philippines office. They claimed their manager, who worked in the same Salt Lake County facility as plaintiff, repeatedly subjected them and other native Filipino employees to racial slurs in the workplace. Plaintiff relayed these comments to her immediate supervisor and to human resources personnel. A few weeks later, plaintiff's employment was terminated.

Plaintiff exhausted her administrative remedies and filed a Tide VII complaint alleging unlawful retaliation. The district court granted defendant's motion to dismiss, concluding that plaintiff did not show an objectively reasonable belief that the conduct she opposed was unlawful under Title VII.

Plaintiff argued on appeal that Title VII's anti-retaliation provision bars an employer from discriminating against an individual who has opposed an employment practice deemed unlawful under the statute. To state a prima facie case of retaliation, a plaintiff must plausibly allege that (1) he or she engaged in protected opposition to discrimination, (2) a reasonable employee would have found the challenged action materially adverse, and (3) a causal connection existed between the protected activity and the materially adverse action.

To decide the issue in this case—i.e., whether plaintiff satisfied the first element by showing an objectively reasonable belief that she opposed discriminatory conduct—the Tenth Circuit adopted an objective reasonableness inquiry that considers the law against what a reasonable employee would believe. This test requires looking beyond the substantive law to considering what a reasonable employee would understand about the law and believe in the same or similar circumstances.

Here, the substantive law provides that discrimination against aliens working for American companies in a foreign country is not unlawful under Tide VII. However, a reasonable employee likely knows that discrimination based on race and/or national origin is unlawful but is unaware of this statutory exception. Therefore, under these circumstances, a reasonable employee could believe that the supervisor's conduct constituted racial and/or national origin discrimination that violated the law. Based on the complaint's allegations, plaintiff held an objectively reasonable belief that the conduct at issue violated Title VII.

The order was reversed and the case was remanded for further proceedings.

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No. 18-1366. United States v. Muhtorov.

12/8/2021. D.Colo. Judge Matheson. Federal Intelligence Surveillance Act—§ 702 Warrantless Surveillance—Fourth Amendment—Separation of Powers—Discovery and Disclosure

Requirements with Classified Information—Sixth Amendment Right to Speedy Trial.

Defendant arrived in die United States in 2007 as a political refugee from Uzbekistan. He became a legal permanent resident and be friended Jumaev, a fellow Uzbekistan refugee, in 2009. Sometime thereafter, defendant and jumaev became interested in the Islamic Jihad Union (IJU), a State Department-designated foreign terrorist organization with ties to al-Qaeda.

The government learned of defendant's connection to the IJU through incidental information it collected through warrantless surveillance conducted under § 702 of the Foreign Intelligence Surveillance Amendments Act of 2008 (§ 702) on a non-US individual living abroad. The government relied on those communications to support applications to monitor defendant's communications under die Foreign Intelligence Surveillance Act of 1978 (FISA). After obtaining approval under FISA, the government intercepted...

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