Guadiana v. City and County of Denver ( 2022 )

Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 9, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
KRISTEN GUADIANA,
Plaintiff - Appellee,
v. No. 21-1294
(D.C. No. 1:20-CV-03784-STV)
CITY AND COUNTY OF DENVER, (D. Colo.)
Defendant - Appellant.
------------------------------
COLORADO PLAINTIFF
EMPLOYMENT LAWYERS
ASSOCIATION,
Amicus Curiae.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, EID, and CARSON, Circuit Judges.
_________________________________
Plaintiff-Appellee Kristen Guadiana was employed by a division of the Denver
Department of Human Services (DDHS) at the City and County of Denver (Denver), but
was dismissed from employment during her probationary period for failure to meet
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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performance standards. Guadiana filed suit against Denver,1 asserting disability
discrimination and retaliation in violation of Title I of the Americans With Disabilities
Act (ADA). Denver filed a motion to dismiss under Rule 12(b)(1), asserting sovereign
immunity. The district court denied the motion. Considering the factual allegations in
Guadiana’s complaint, we find that Guadiana sued Denver, not DDHS, that she plausibly
alleged to be employed by Denver, and that she plausibly alleged non-DDHS Denver
employees participated in the interactive process and the termination decision. Because
sovereign immunity does not extend to counties, cities, or other political subdivisions of
the state, Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1560 (10th Cir. 1992), we
therefore affirm the district court’s decision to deny Denver’s motion to dismiss, finding
that Denver is not entitled to sovereign immunity at this juncture.
I.
The following facts are taken from the amended complaint (“complaint”). Denver
employs more than 11,000 employees in over fifty departments and agencies. Kristen
Guadiana, previously employed by Denver, has cerebral palsy, which causes paralysis on
the left side of her body, rendering her unable to use her left hand for certain manual
tasks, such as typing.
On May 15, 2015, Denver hired Guadiana as an Eligibility Technician I (“ET”) in
the Family and Adult Assistance Division (“FAAD”) of DDHS. As an ET, Guadiana was
1
Denver is a consolidated city and county government, and is a municipal
corporation organized and existing under the laws of the State of Colorado. See
Colo. Const. art. XX, § 1.
2
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responsible for assisting clients in determining Medicaid eligibility and specifically
required to complete a certain number of applications each day. The accuracy of these
applications was tracked. Guadiana was required to comply with Denver policies and
practices. Furthermore, as a Denver employee, Guadiana was subject to Denver’s Career
Service Rules, which govern a variety of personnel policies, “including pay,
classification, transfers, dispute resolution, promotions, [and] training.” App’x at 6.
Guadiana was hired with approximately twenty other ETs, all reporting to Nora
Pacheco, Eligibility Supervisor at FAAD. Within a couple months of starting, Pacheco
and a few others noted that Guadiana typed with only one hand. Guadiana disclosed to
them that she was unable to type with her left hand because of her cerebral palsy. Every
month or so, as with all ETs, Guadiana met one-on-one with Pacheco for ten to fifteen
minutes to see how Guadiana was doing and determine if she needed anything. Just
before the close of each meeting, Pacheco would disclose numbers related to Guadiana’s
performance (for example, number of completed applications and level of accuracy).
On November 5, 2015, Pacheco told Guadiana her “numbers are a little low” and
that Denver would be extending Guadiana’s initial probation period. Id. at 8. Pacheco
asked if she had any idea why her numbers were low and if there was anything she
needed to assist her. Guadiana responded by reminding Pacheco that she cannot type
with her left hand because of her cerebral palsy. As a result, Pacheco contacted Wilma
Springer, the ADA Coordinator at Denver’s Office of Human Resources (“DOHR”), who
sent a Reasonable Accommodation Questionnaire to Guadiana’s physician around
November 12, 2015; the physician promptly returned a completed copy.
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On November 9, 2015, DDHS sent a formal memorandum to Karen Niparko, the
Executive Director of DOHR, requesting a sixty-day extension of Guadiana’s
probationary period to “allow more time to manage the ADA interactive process.” Id. A
month or so later, Gabriel Millán, Pacheco’s supervisor and FAAD Operations Manager,
contacted Elizabeth Ortiz, who had served as Guadiana’s supervisor when Guadiana was
an employee of Jefferson County. Millán asked about Guadiana’s job duties at Jefferson
County, whether she had any “special accommodations,” and her reason for leaving. Id.
at 9. Millán then circulated the feedback from Ortiz to Ms. Springer, an Assistant City
Attorney (no relation to DOHR’s Wilma Springer), and two employees at DOHR.
Guadiana did not consent to this contact, and was unaware Millán had reached out to
Ortiz until Denver described the communication in its April 2017 response to Guadiana’s
EEOC charge of discrimination.
On January 8, 2016, Denver requested another sixty-day extension of Guadiana’s
probation, this time through May 17, 2016. In the memorandum to DOHR requesting
this extension, Denver stated DDHS would purchase voice-activated software for
Guadiana by January 31, 2016, and that Guadiana would be given one month to set up
and become acclimated to the software before Pacheco could begin tracking and
evaluating Guadiana’s productivity. On January 12, 2016, DOHR’s Wilma Springer
shadowed Guadiana to assess what accommodations would be useful. Springer
suggested Guadiana might benefit from a one-handed keyboard, voice recognition
software, and an ergonomic assessment. Springer also stated that, if these reasonable
accommodations were unhelpful, Denver would need to find Guadiana a different
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position at DDHS or another agency within the City of Denver. On January 25, 2016,
Safety Officer Gary Freeman conducted an ergonomic assessment of Guadiana’s
workspace. In his report, Freeman recommended that Denver provide Guadiana with a
“short” keyboard and a ten-key keypad for entering numbers. Id. at 10. Guadiana,
Wilma Springer, and other Denver employees ultimately decided against the voice
recognition software.
Guadiana was on approved leave from mid-February to mid-March for an
unrelated medical issue. While on leave, the keyboard arrived but was not installed; the
ten-key keypad was never ordered. Springer also ended the interactive process via letter
on February 25, 2016, despite the fact that Guadiana had not yet used either keyboard.
When Guadiana returned to work, she had a temporary part-time schedule, working four
hours per day. Shortly after Guadiana returned to work in mid-March, Denver attempted
to install the short keyboard but was unable to do so because it was intended for use with
a tablet, not a computer.
During another one-on-one meeting between Pacheco and Guadiana, Pacheco told
Guadiana that she did not meet her goals for February or March, but that Pacheco could
tell she was on track to meet her goals in April. Guadiana also asked how Pacheco
calculated the numbers for February and March because she had only worked eleven days
in February and fourteen half-time days in March. Pacheco refused to discuss the matter.
Upon returning to work in March, Pacheco assigned Guadiana to a call center where she
gave information to clients about their case but did not enter information into the
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computer system. Although Pacheco said she took these calls “into account” when
calculating the performance numbers, Pacheco never described how she did so. Id. at 11.
In March, Pacheco provided Guadiana with a Performance Enhancement Progress
Report (“PEPR”) for the period of May 18, 2015, through December 31, 2015, which is
an evaluation provided to Denver employees by their supervisors pursuant to Rule 13 of
the Denver Career Service Rules. Before Guadiana’s approved accommodations were in
place, Pacheco gave Guadiana a “below expectations” rating, and left out any reference
to Guadiana’s need for reasonable accommodations. Id. at 11–12.
On or around April 12, 2016, a proper short keyboard finally arrived and was
installed. On April 21, 2016, Denver terminated Guadiana for allegedly failing to pass
employment probation. In the termination letter, Denver referenced several applicable
Career Service Rules, including Rules 5 and 14, which address termination from
employment during an employee’s probationary period, and Rule 19, which provides
appeal rights for separations in some circumstances.
Guadiana filed for unemployment insurance benefits and identified Denver as her
employer. These benefits were paid by Denver after the Colorado Department of Labor
and Employment awarded her these benefits. Guadiana filed an EEOC charge of
discrimination against Denver within 300 days of her termination. On September 28,
2020, the EEOC issued a Notice of Right to Sue.
In her complaint in the district court, Guadiana asserted two claims, both against
Denver. First, Guadiana claimed Denver discriminated against her because of her
disability in violation of the ADA. Second, Guadiana claimed Denver retaliated against
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her after she made the accommodation request. The complaint included allegations that
Denver had failed to take into account Guadiana’s disability-related performance issues;
contacted her former supervisor at a previous employer about accommodations received;
ended the interactive process without first assessing the effectiveness of the approved
accommodations; terminated Guadiana without first evaluating whether her performance
issues improved following the accommodations; failed to offer additional reasonable
accommodations, including transfer to a vacant position for which she was qualified; and
otherwise failing to engage in the interactive process in good faith.
Denver filed a motion to dismiss asserting that Denver has sovereign immunity
under the Eleventh Amendment. The district court denied the motion for two reasons.
First, “[a]ccepting the allegations as true,” the court found Guadiana “plausibly alleged
that she was an employee of the City and not only an employee of DDHS.” Id. at 51.
The court noted that Denver admitted this in its reply in support of its motion, where it
stated: “[b]oth . . . Denver and [DDHS], as an agency of . . . Denver, employed the
Plaintiff.” Id. at 40. Second, the court found that Denver was not entitled to sovereign
immunity. While the court admitted that courts “have consistently dismissed cases
against DDHS on sovereign immunity grounds,” the court could not find any case
upholding sovereign immunity for Denver where the plaintiff had exclusively named
Denver as the defendant, and specifically “alleged that she was an employee of [Denver],
rather than or in addition to DDHS,” and that employees of Denver—as distinguished
from DDHS—participated in the interactive process and termination decision. Id. at 53–
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54. Thus, the district court held that Guadiana had plausibly alleged claims against a
political subdivision, Denver, that did not have sovereign immunity.
II.
The sole issue in this case is whether the district court erred in its decision to
deny Denver’s motion to dismiss by finding Denver was not entitled to Eleventh
Amendment immunity. We review the denial of a motion to dismiss based on Eleventh
Amendment immunity under a de novo standard of review. See Couser v. Gay, 959 F.3d
1018, 1026 (10th Cir. 2020). In reviewing Denver’s facial attack of Guadiana’s
complaint, we accept the allegations contained in the complaint as true. See Ruiz v.
McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002).
The Supreme Court has extended the Eleventh Amendment’s applicability to suits
by citizens against their own states. See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S.
356, 363 (2001) (“The ultimate guarantee of the Eleventh Amendment is that
nonconsenting States may not be sued by private individuals in federal court.”). The
Court has also held that the Eleventh Amendment protects state agents and agencies who
are “arm[s] of the state” from being sued in federal court. Regents of the Univ. of Cal. v.
Doe, 519 U.S. 425, 429 (1997); see also Steadfast Ins. Co. v. Agric. Ins. Co., 507 F.3d
1250, 1253 (10th Cir. 2007).
While Denver claims it is entitled to sovereign immunity because “[Denver] was
acting as an agent of the state,” Aplt. Br. at 7, Guadiana argues that she was employed by
Denver, and that she has only brought claims against Denver, not DDHS. Here,
“presum[ing] all of the allegations contained in the amended complaint to be true,” Ruiz,
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299 F.3d at 1180, we agree with Guadiana; the complaint intentionally named Denver as
the sole defendant and plausibly alleged claims against Denver.
According to the complaint, Denver hired Guadiana for a position in one of its
departments, DDHS. Following her hire, Denver paid Guadiana, provided her benefits,
trained her, and terminated her employment for violations of its Career Service Rules.
Guadiana was entitled to the same benefits as other Denver employees. She was required
to comply with Denver policies and practices, and she was subject to Denver’s Career
Service Rules. DOHR drafted Guadiana’s job description and required her to follow
Denver policies. Denver also controlled the terms and conditions of Guadiana’s
employment, including the ADA interactive process and her termination, primarily
through DOHR. Notably, the complaint alleges that Denver’s ADA Coordinator, an
employee at DOHR, was Guadiana’s point of contact through the interactive process, and
that the process was wrongfully terminated before she had become adept at using the
approved keyboards. Assistant City Attorney Springer also told Guadiana that one of the
reasonable accommodations that would be considered was a transfer to “another agency
within the City,” and Denver failed to offer Guadiana this transfer. App’x at 10.
Therefore, because sovereign “immunity . . . does not extend to counties, cities, or
other political subdivisions of the state,” Ambus, 975 F.2d at 1560, we find that the court
did not err in finding that the named defendant in this case, Denver, is not entitled to
sovereign immunity. Guadiana has plausibly alleged that she was an employee of
Denver, distinct from DDHS, and we simply accept these allegations as true. We note,
however, that we do not address whether Denver’s claim to sovereign immunity will
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succeed on the merits once the facts are more solidified beyond the motion to dismiss
stage.2
Denver cites several district court cases to support its arm-of-the-state theory,
essentially claiming that Denver can somehow borrow its agency’s sovereign immunity
as if Guadiana had brought suit against DDHS. See Aplt. Br. at 15. However, we do not
find these cases persuasive, and Denver fails to point to any legitimate legal doctrine or
precedent to support its position. As the district court found, we are likewise “unaware of
any decision in which [Denver]—as distinguished from DDHS—was dismissed where, as
here, the plaintiff alleged that she was an employee of [Denver], rather than or in addition
to DDHS.” App’x at 52–53.
We do not reach the particular inquiry of whether Denver was acting as an agent
of the state when it administered human services provided by DDHS. Denver and DDHS
are not considered the same entity under Colorado law.3 We do not assume Guadiana
meant to bring claims against DDHS when, according to the plain terms of the complaint,
2
Denver points to Bettis, where the plaintiff filed a § 1981 claim against Denver,
but where the plaintiff initially named DDHS as the respondent in her Charge of
Discrimination and the Intake Questionnaire. See Bettis v. City and Cty. of Denver, 2010
WL 1839332 at *1 (D. Colo. Apr. 8, 2010). The court found while “[t]he Complaint
could be amended easily to join or substitute the DDHS,” this would be futile because the
claims were time-barred. Id. at *3. Denver also argued DDHS was an arm of the state.
Id. at *4. The court’s analysis on this issue was brief. Instead of considering whether
Denver—as a separate suable entity from DDHS—would be entitled to sovereign
immunity, the court found the plaintiff’s claims (now seemingly characterized as claims
against DDHS) were barred because DDHS had sovereign immunity. Id. In other words,
Bettis did not determine the issue applicable here.
3
The Colorado Human Services Code recognizes that the state and county
departments are separate entities with separate roles in providing services. See Colo.
Rev. Stat. § 26-1-103.
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Guadiana named Denver as the sole defendant. Guadiana intentionally sued Denver,
independent of DDHS, and plausibly alleged that she was employed by Denver as
distinguished from DDHS. Had Guadiana brought suit against DDHS, the issue of
whether Denver “act[ed] as an agent of the state administering the state’s human services
programs” may have been a relevant inquiry. Aplt. Br. at 13. But she did not. Thus, we
do not reach this issue.
Denver also claims that we should affirm the district court because it “rel[ied] on
form over substance” by basing its conclusion “solely on how [Guadiana] characterized
her pleading.” Id. at 20. However, at the motion to dismiss stage and without additional
facts, our analysis is framed by how the plaintiff here characterized the pleading,
presuming all allegations in the amended complaint to be true, and resolving all
reasonable inferences in her favor. We therefore affirm the district court’s denial of
Denver’s motion to dismiss.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s denial of Denver’s
motion to dismiss.
Entered for the Court
Allison H. Eid
Circuit Judge
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