Guadiana v. City and County of Denver

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 9, 2022
• Docket: 21-1294
• Status: Unpublished

Opinion

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 2

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 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 3

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.

3 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 4

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

4 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 5

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

5 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 6

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

6 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 7

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–

7 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 8

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,

8 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 9

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

9 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 10

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. 10 Appellate Case: 21-1294 Document: 010110722110 Date Filed: 08/09/2022 Page: 11

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