Ramirez v. Dept. Corrections Colorado, No. 99-1313

• Citation: 222 F.3d 1238
• Decision Date: 11 August 2000
• Docket Number: No. 99-1313
• Parties: (10th Cir. 2000) DAVID L. RAMIREZ and ELY E. PACHECO, Plaintiffs-Appellees, v. DEPARTMENT OF CORRECTIONS, STATE OF COLORADO; ARISTEDES ZAVARAS, in his official capacity as the Executive Director of the Department of Corrections, Defendants, and JEANEENE E. MILLER, individually, Defendant-Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1238

222 F.3d 1238 (10th Cir. 2000)

DAVID L. RAMIREZ and ELY E. PACHECO, Plaintiffs-Appellees, v. DEPARTMENT OF CORRECTIONS, STATE OF COLORADO; ARISTEDES ZAVARAS, in his official capacity as the Executive Director of the Department of Corrections, Defendants and JEANEENE E. MILLER, individually, Defendant-Appellant.

No. 99-1313

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 11, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 97-B-2450)

[Copyrighted Material Omitted] Andrew D. Ringel of Hall & Evans, LLC (Thomas J. Lyons and Melanie B. Lewis with him on the brief), Denver, Colorado, for Defendant-Appellant.

Darrell Dean Damschen of Frank & Finger, P.C., Evergreen, Colorado, for Plaintiffs-Appellees.

Before BALDOCK, MAGILL,^* and LUCERO, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiffs David L. Ramirez and Ely E. Pacheco, Hispanics of Mexican-American origin, are employees of the Colorado Department of Corrections (DOC), stationed in Pueblo, Colorado. In November 1997, they filed a complaint in federal district court against, among others, Defendant Jeaneene E. Miller, Director of the Division of Community Corrections for DOC. In their complaint, Plaintiffs assert claims against Defendant arising under 42 U.S.C. §§ 1981 & 1983. Plaintiffs' base their claims on racial and national origin discrimination, as well as on violations of their First Amendment free speech and Fourteenth Amendment equal protection rights.

Defendant filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). In her motion, Defendant raised the defense of qualified immunity. The district court granted her motion in part and denied it in part. The district court first concluded that Defendant was entitled to qualified immunity with respect to Plaintiffs' § 1983 free speech claims because Plaintiffs did not identify speech regarding a matter of public concern. Accepting the factual allegations in Plaintiffs' complaint as true, the court next concluded that Defendant was not entitled to qualified immunity on Plaintiffs' § 1981 discrimination and § 1983 equal protection claims.

Defendant appeals. The only question before us is whether the district court correctly denied Defendant's Rule 12(c) motion claiming qualified immunity on Plaintiffs' §§ 1981 & 1983 claims. "We have jurisdiction to review interlocutory appeals from the denial of qualified immunity 'to the extent they resolve abstract issues of law.'" Lovingier v. City of Black Hawk, No. 98-1133, 1999 WL 1029125, at *1 (10thCir. Nov. 12, 1999) (unpublished) (quoting Claton v. Cooper, 129 F.3d 1147, 1152 (10th Cir. 1997)). Because a Rule 12(c) motion for judgment on the pleadings raises only legal issues, we properly exercise jurisdiction and affirm.¹

I.

We review the denial of a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) under the same standard of review applicable to a Rule 12(b)(6) motion. McHenry v. Utah Valley Hosp., 927 F.2d 1125, 1126 (10th Cir. 1991). Accordingly, we review the denial of such a motion de novo, applying the same standard as the district court. Id. We accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff. Beck v. City of Muskogee Police Dept., 195 F.3d 553, 556 (10th Cir. 1999). Generally, the complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Sutton v. Utah State Sch. for the Deaf and Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).

When a defendant asserts a qualified immunity defense in a Fed. R. Civ. P. 12(c) motion, however, "we apply a heightened pleading standard, requiring the complaint to contain 'specific, non-conclusory allegations of fact sufficient to allow the district court to determine that those facts, if proved, demonstrate that the actions taken were not objectively reasonable in light of clearly established law.'" Dill v. City of Edmond, 155 F.3d 1193, 1204 (10th Cir. 1998) (quoting Breidenbach v. Bolish, 126 F.3d 1288, 1293 (10th Cir. 1997)).² To overcome a defendant's claim of qualified immunity in the context of a Rule 12(c) motion, a plaintiff's pleadings must establish both that the defendant's actions violated a federal constitutional or statutory right and that the right violated was clearly established at the time of the defendant's actions. Scott v. Hern, 216 F.3d 897, 910 (10th Cir. 2000). Applying these standards, we affirm.

II.

According to their complaint, Plaintiffs work for the DOC in the Division of Community Corrections in Pueblo, Colorado. Plaintiffs allege Defendant, their supervisor, has routinely denied Hispanics of Mexican-American descent permanent supervisory positions within Community Corrections. Further, Plaintiffs allege Defendant has denied Hispanics, including Plaintiffs, the ability to function as lead workers. The lead worker designation is a supervisory position which provides office management responsibility and prepares individuals for promotions.

Plaintiffs allege that prior to 1996, Defendant promoted Mike Slayton, a white male, as the lead worker of the Pueblo office without engaging in any competitive process when both Plaintiffs were equally or better qualified than Slayton for the position. Plaintiffs initiated internal complaints with DOC officials including Defendant alleging Slayton engaged in discriminatory and harassing behavior. In January 1996, Defendant met with Plaintiffs about their complaints and suspended Slayton from his lead worker supervisory position.

Defendant still did not designate either Plaintiff lead worker. Instead, in February 1996, supervision of the Pueblo office was transferred to LaCole Archuleta in Denver, Colorado. Plaintiffs allege Defendant's failure to promote either Plaintiff to lead worker constituted retaliation for speaking out about the harassment. Since reporting Slayton's harassment, Plaintiffs allege Defendant has subjected them to ongoing hostility. Plaintiffs further allege Defendant refused to fully and objectively investigate Plaintiffs' complaints of workplace harassment and refused to take any substantial action against Slayton for his discriminatory and harassing conduct.

In April 1996, Plaintiffs filed a formal complaint of workplace harassment with the DOC Inspector General (IG) against Slayton, Defendant, and other supervisors. The complaint requested protection against further harassment and retaliation by those named in the complaint. Plaintiffs subsequently filed another complaint regarding harassment and retaliation by Slayton and requested the continued harassment and retaliation be included in the IG's investigation of their prior complaint.

In May 1996, Plaintiffs received a telephone call from Archuleta. During the conversation, Archuleta asked Plaintiffs whether they were citizens of the United States. Archuleta told Plaintiffs that one or more white DOC employees requested she ask this question. The question offended Plaintiffs. Plaintiffs informed Archuleta that they were United States citizens and advised her of the offensive nature of the question. Plaintiffs indicated that they felt they were being specifically targeted based on their national origin. Plaintiffs asked other white DOC employees if they had been asked questions concerning citizenship. The other employees told Plaintiffs no.

The next day, Plaintiffs received another call from a white employee, again inquiring about Plaintiffs' citizenship. Official DOC employment applications and documents establish that Plaintiffs are United States citizens. Plaintiffs made a written complaint of workplace harassment and discrimination based on the citizenship inquiry. Plaintiffs allege that after they complained of this harassment and discrimination, Defendant continued to undertake retaliatory and discriminatory actions against Plaintiffs.

On May 21, 1996, six days after Plaintiffs complained about the citizenship inquiry, Defendant commenced a disciplinary action against Plaintiff Ramirez. Plaintiff Ramirez alleges Defendant provided inaccurate information to H.B. Johnson, the Regional Director of DOC, who conducted the disciplinary hearing. Johnson issued a corrective action letter to Plaintiff Ramirez for complaining about the citizenship inquiry. Plaintiff Ramirez appealed Johnson's decision. On October 7, 1996, Gerald Gasko determined Mr. Johnson's discipline was inappropriate.³ Defendant purportedly complained to other DOC officials about Gasko's decision. Finally, Plaintiff Ramirez alleges Defendant perpetrated, coordinated, and approved downgrading his performance evaluation without justification.

Plaintiff Pacheco also alleges that Defendant harassed and retaliated against him. According to Plaintiff Pacheco, on July 19, 1996, Defendant sent a counseling letter to Plaintiff Pacheco containing false allegations that Pacheco had violated a DOC administrative regulation regarding workplace discrimination and harassment. Plaintiff Pacheco alleges that on July 29, 1996, Defendant improperly downgraded his performance evaluation from "outstanding" to "good." Plaintiff Pacheco filed a grievance stating that he believed the evaluation was an act of retaliation. Plaintiff Pacheco's grievance concerning his inappropriately lowered performance evaluation was never satisfactorily resolved. Defendant denied the grievance without requiring Plaintiff Pacheco's supervisors to justify their reduction in his evaluation.

On September 3, 1996, while Plaintiff Pacheco's grievance was pending, Defendant sent Pacheco a letter indicating she was instituting a new disciplinary process against him. The corrective action process related to Plaintiff Pacheco's citizenship telephone conversation with Archuleta. Plaintiff alleges this action was...