Arabalo v. City of Denver

Decision Date09 September 2015
Docket NumberNo. 14-1259,14-1259
PartiesCHERYL ARABALO, Plaintiff - Appellant, v. CITY OF DENVER, COUNTY OF DENVER, through its elected officials, the Denver City Council; ASHLEY KILROY, in her official capacity as Acting Safety Manager for the City and County of Denver; CAPTAIN GUTIERREZ; PHILLIP DEEDS, Defendants - Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

(D. Colo.)


Before KELLY, PHILLIPS, and MORITZ, Circuit Judges.

Until March 2012, and for 18 years, Cheryl Arabalo was employed at the Denver Sheriff's Department (the "Department"), most recently with the rank of captain. After being fired, Arabalo sued the City and County of Denver ("Denver"), Chief Phillip Deeds (her supervisor), Ashley Kilroy (acting safety manager for the city), and Captain Silver Gutierrez. The district court dismissed on pretrial dispositive motions all but one of Arabalo's claims—her Title VII claim based on a hostile workenvironment. The parties tried this claim to a jury, and the jury found against Arabalo.

On appeal, Arabalo makes three arguments: (1) that the district court erred in concluding that Arabalo had failed to exhaust her administrative remedies for one of the three bases asserted to support her hostile-work-environment claim: an alleged rape that occurred at her home; (2) that Denver failed to meet its initial burden for summary judgment on all claims; and (3) that the district court erred in permitting her to amend her complaint because the district court should have known that it would later dismiss the claims it permitted her to add. The defendants argue that Arabalo's notice of appeal was insufficient to vest us with jurisdiction on all claims, and alternatively, they argue that we should affirm the district court on the merits.

We hold that we have jurisdiction over Arabalo's entire appeal. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's conclusion that Arabalo failed to exhaust her administrative remedies for one basis of her Title VII hostile-work-environment claim, the alleged rape at her home. We AFFIRM the grant of Denver's summary judgment motion and the grant of Captain Gutierrez's motion to dismiss.

A. Sexual Harassment by Inmates

Arabalo worked for the Department for 18 years as a corrections officer. In late 2008, Denver County Jail inmates began sexually harassing Arabalo as sheperformed her duties in the jail. In December 2008, a news story had aired on television called "Sex, Lies, Video Tapes and DPD," an account of jail employees participating in a sex tape. Appellant's App'x at 191. The inmates concluded that Arabalo was part of the sex tape because the news story had reported that a person named "Arabalo" was involved. Going forward, the inmates masturbated toward her during her rounds, cat-called her, and suggested that she engage in various sexual acts with the inmates and with jail personnel. She reported this problem to the Department, but it initially did nothing. The Department told her that she was responsible for enduring the harassment. After she complained for six months, in June 2009, Denver finally transferred her to the Pre-Trial Arraignment Detention Facility ("PTDF"). Later in November 2009, Denver transferred Arabalo back to the Denver County Jail, where the inmates again began sexually harassing her. When she asked Chief Deeds why she was being transferred back to the jail, he told her that she had done nothing wrong and that her work had been excellent.

B. Two Deputies Allegedly Sexually Assault Arabalo in Her Home

In 2004, Arabalo founded the Denver Sheriff Foundation ("the Foundation"), a private, nonprofit organization created to assist the Department employees in need of financial or other assistance. In October 2009, Arabalo and Deputies William Currat and Tyler Mazotti, two other Foundation volunteers, were at Arabalo's home for a Foundation meeting. According to Arabalo, the two men lingered in her basement after the meeting, commented about her breasts, and asked her to lift her shirt. After she tried to leave, they blocked her from leaving the basement. She says that the twodeputies then attacked and raped her. None of the three were on duty. The next day, she reported the rape to her supervisor at the PTDF, Chief Deeds, but he told no one else about the incident, and he advised her to keep quiet about it. The Department never investigated her allegations. On the verge of termination for his response to Arabalo, Chief Deeds ultimately resigned from the Department.

C. Arabalo Files Charges of Discrimination

In April 2010, Arabalo first filed a charge of discrimination with the Colorado Civil Rights Division ("CCRD"), alleging that during her employment at the Department she was subjected to sexual harassment, retaliation, and a hostile work environment. In July 2010, Arabalo also filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). In October 2010, she sent an email to Kimberly Roy at the CCRD, saying that an unnamed captain (Gutierrez) with the Department had continued to sexually harass her. She did not want to mention his name for fear of retaliation. In November 2010, the Department received a copy of Arabalo's combined CCRD/EEOC charge.

D. Captain Gutierrez Sexually Harasses Arabalo

Gutierrez and Arabalo were both captains with the Department, and they both volunteered for the Foundation. Gutierrez had been with the Department for 16 years. Gutierrez was also a board member and the treasurer of the Foundation. As far back as 2008, Arabalo says that Gutierrez had made sexually explicit comments to her at work while they were both captains at the Denver County Jail. For instance, on one occasion, Gutierrez asked Arabalo to unbutton her shirt. He also commented to herabout the size of her chest and asked if her breasts were real. For two days, August 26-27, 2008, Gutierrez was temporarily in a position of authority over Arabalo when he served as Acting Chief of the County Jail. Gutierrez denied all of Arabalo's allegations, except admitting that he had probably been "playing around" and said "what are you wearing" to Arabalo once on the phone and that, on another occasion, he told her to unbutton her shirt. Appellant's App'x at 448. In October 2010, Arabalo reported his conduct to Kimberly Roy at the CCRD, but she asked Roy to withhold Gutierrez's name in the CCRD report, and Roy complied with Arabalo's request.

E. Denver Investigates Arabalo's Rounds Reports

In late July 2010, the Department began investigating Arabalo for falsely reporting that she had uploaded her rounds reports for the Denver County Jail (the "Rounds-Reports Investigation"). On July 15, 2010, Arabalo had sent an email to a Major Homer, saying, "I reviewed Guard [O]ne Reports for 2, 4, 22, and 21 and it appears that rounds are being made in a timely manner an[d] downloaded up through yesterday 7/14/10." Appellant's App'x at 238. Major Homer checked the Guard One database and "found that it contained no data for July 14, 2010." Id. In fact, the "Guard One" reports that Arabalo referenced in her original email "had not been downloaded for several days." Id. Writing a memorandum that began the disciplinary process, Major Homer concluded, "Due to the fact that the [reports] were not downloaded and she did not log onto the Guard One System, I can only conclude she has falsified a report to her Superior Officer, and ultimately departed from the truth." Id.

In January 2011, during her disciplinary proceedings, Arabalo said that she had not meant to say that all of the reports had been downloaded, but instead that she was having issues with the computer and "was doing the rounds in a way that [she] had always done them." Id. at 238-40. She said that, in July 2010, she had been able to download some, but not all, of the reports. But the computer system (which logs all the dates and times of all users' entries) showed that Arabalo had not logged into the system until July 21, 2010. It definitively showed that Arabalo had not logged into the system on July 14, 2010, as she said she had done. Ashley Kilroy, the Deputy Manager of Safety, ultimately concluded:

Your actions amount to conduct prejudicial to the efficiency, good name and reputation of the City and County of Denver; and as such would cause the public to lose confidence in the Denver Sheriff Department and/or the Department of Safety. Among other things, you disobeyed a direct order [to submit the rounds reports], you departed from the truth, you falsified a record and you failed to perform the required duties of your position [to check rounds]. Your actions and admissions have also led us to question your truthfulness and good judgment[,] which are essential to your position with the Denver Sheriff Department. As a member of the Department you are expected to maintain the highest standards of character by the Department and by the citizens of the City and County of Denver.

Appellant's App'x at 242. The Department provided Arabalo with the evidence supporting its conclusion that she had lied about submitting her rounds reports. Denver then suspended Arabalo for 70 days.1

F. Gutierrez Alleges that Arabalo Embezzled Money from the Foundation

After learning of Arabalo's CCRD/EEOC complaint in November 2010, the Department began investigating Gutierrez for sexual harassment, ultimately suspending him from work for 75 days.2 In a January 2011 interview about his sexual harassment, Gutierrez told the internal-affairs investigator that he thought Arabalo had misappropriated funds from the Foundation. Gutierrez was the Foundation treasurer, so he received all of its bank statements in the mail. Gutierrez gave the investigator bank statements showing improper debit-card transactions by Arabalo. He told the investigator that he knew Arabalo was spending Foundation money on non-Foundation expenses. In May 2011, Denver began...

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