Cisneros v. Wilson

• Decision Date: 11 September 2000
• Docket Number: No. 98-2215,98-2215
• Citation: 226 F.3d 1113
• Parties: (10th Cir. 2000) REBECCA CISNEROS, Plaintiff-Appellant, v. HEATHER WILSON, Cabinet Secretary; CHRISTINE ROMERO, in her individual capacity, Defendants, and CHILDREN, YOUTH AND FAMILIES DEPARTMENT, as a branch of the State of New Mexico, Defendant-Appellee. UNITED STATES OF AMERICA, Intervenor
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1113

226 F.3d 1113 (10th Cir. 2000)

REBECCA CISNEROS, Plaintiff-Appellant, v. HEATHER WILSON, Cabinet Secretary; CHRISTINE ROMERO, in her individual capacity, Defendants, and CHILDREN, YOUTH AND FAMILIES DEPARTMENT, as a branch of the State of New Mexico, Defendant-Appellee.

UNITED STATES OF AMERICA, Intervenor.

No. 98-2215

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

September 11, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. CIV-96-1493 LH/DJS)

[Copyrighted Material Omitted] Donna L. Dagnall, Dagnall, Rames & Thomas, Albuquerque, New Mexico, for Plaintiff-Appellant.

Paula I. Forney, State of New Mexico, Legal Bureau/RMD, Santa Fe, New Mexico, for Defendant-Appellee.

Jessica Dunsay Silver, Seth M. Galanter, Attorneys, Department of Justice, Washington, D.C., filed a brief for the Intervenor.

Before EBEL, HOLLOWAY, and KELLY, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff Rebecca Cisneros (Plaintiff) brought this action against the New Mexico Department of Children, Youth, and Families (Defendant Department).¹ Plaintiff alleged that Defendant Department (1) terminated her because of her disability (severe depression and acute anxiety) in violation of Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213, and (2) retaliated against her in violation of Title VII of the 1964 Civil Rights Act (Title VII), as amended, 42 U.S.C. §§ 2000e to 2000e-15, because she had filed charges of discrimination with the Equal Employment Opportunity Commission (EEOC). The district court granted Defendants' motion for summary judgment on both claims, holding that Plaintiff could not prove: (1) that she was a "qualified individual with a disability" as required by the ADA, or (2) that she was retaliated against because she had filed charges with the EEOC as required by Title VII.

The Plaintiff appealed. Following argument there was an intervening Supreme Court opinion that was handed down in January 2000, Kimel v. Florida Bd of Regents, 120 S. Ct. 631 (2000). We requested supplemental memoranda from the parties and from the Government as an intervenor. These have been considered and we have determined that the Eleventh Amendment, which was raised at oral argument, does not bar this suit and that we have jurisdiction pursuant to 28 U.S.C. § 1291. For reasons that follow, we affirm in part, reverse in part, and remand for further proceedings.

I

A

Because the district court granted Defendants' motion for summary judgment, we view the evidence in the light most favorable to Plaintiff. See McGarry v. Bd of County Comm'rs, 175 F.3d 1193, 1198 (10th Cir. 1999) ("We view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party.").

From 1984 until 1995, Plaintiff worked for the Defendant Department (and various other state agencies). In May 1995, Plaintiff was ordered to investigate another employee for possible wrongdoing. During the four days of the investigation, Plaintiff was placed under "extraordinary" emotional strain which caused Plaintiff to suffer a mental breakdown on May 19, 1995. Before her breakdown, Plaintiff had no mental disability. Instead, she was a "fully competent" employee who was "performing the duties of her position." After her breakdown, Plaintiff was unable to work. She sought treatment from a psychiatrist, Dr. Ray, who diagnosed her as suffering from severe depression and acute anxiety.

To allow her sufficient time to recover, on June 21, 1995 Plaintiff filed a request for leave pursuant to the Family and Medical Leave Act (FMLA). Defendant Department granted that request and provided Plaintiff leave from June 26, 1995 until September 15, 1995 (the maximum amount of leave authorized under that Act). See 29 U.S.C. § 2612(a)(1) (providing twelve weeks of leave under FMLA).

In early August 1995, Plaintiff requested forms so that she could participate in Defendant Department's voluntary annual leave transfer program. That program would have allowed Plaintiff to remain on paid leave by obtaining donated leave from other employees. Defendant Department refused to provide the forms directly to Plaintiff because she had obtained counsel; Defendant Department, instead, told Plaintiff to have her attorney contact it.²

Around September 12, 1995, Plaintiff wrote Defendant Department requesting that it extend her leave until January 15, 1996. On September 29, 1995, Defendant Department wrote back, informing Plaintiff that department policy allowed extended leave without pay, but only under two circumstances: (1) if the department could assure her a position of like status and pay at the same geographic location upon return, or (2) if the department could not make such assurances, but the employee waived his or her right to return to such a position. Defendant Department told Plaintiff that it could not assure her return to an equivalent position and, thus, it could grant her request for leave only if she waived her right to return to such a position. Defendant Department placed Plaintiff on leave without pay until she submitted a completed request for extended leave.

On the same day that Defendant Department wrote back to Plaintiff, September 29, 1995, Plaintiff filed a charge with the EEOC alleging age and disability discrimination.³ Thereafter, on October 16, 1995, Plaintiff submitted a request for extended leave without pay, as well as a request to participate in Defendant Department's voluntary annual leave transfer program. With the requests, Plaintiff included letters from Dr. Ray and another of Plaintiff's doctors, Dr. Maestas, stating that Plaintiff was unable to work. In the requests Plaintiff refused to waive her right to return to an equivalent position. II App. at 182 ("I am unable to comply with your request to waive my rights to my position, pay and location upon return to work.").

On November 6, 1995, Defendant Department informed Plaintiff that it could not grant her request for extended leave without pay because she had not waived her right to return to an equivalent position. Defendant Department therefore placed Plaintiff on "absent without leave" status. See id. at 188; I App. at 117 (employment policy) ("Failure by the employee to report to work upon the expiration of approved Family/Medical Leave will result in Absent Without Leave status, and may result in disciplinary action.") (emphasis in original). Defendant Department, however, gave Plaintiff five working days from receipt of the letter to reconsider her decision not to waive that right. Because Plaintiff was absent without leave, Defendant Department refused to consider her request to participate in the voluntary annual leave transfer program.

On November 7, 1995, Plaintiff filed another charge with the EEOC, this time alleging that Defendant Department had retaliated against her for filing the first charge. Two days later, Plaintiff again informed Defendant Department that she would not waive her right to return to an equivalent position. In response, Defendant Department told Plaintiff that it was considering dismissing her from her position for being absent without leave. After repeated exchanges of correspondence between Plaintiff and Defendant Department, Defendant Department dismissed Plaintiff on December 23, 1995. On that same day, Plaintiff filed another charge with the EEOC alleging that she had been terminated in retaliation for filing her previous charges with the EEOC.

B

On October 29, 1996, Plaintiff filed this action alleging that Defendants (1) terminated her because of her disability in violation of the ADA, and (2) retaliated against her because she had filed charges of discrimination with the EEOC in violation of Title VII. See I App. at 1-5. Thereafter, Defendants moved for summary judgment. See I App. at 33. On July 22, 1998, the district court granted Defendants' motion, holding that Plaintiff could not prove: (1) that she was a "qualified individual with a disability" as required by the ADA, or (2) that she was retaliated against because she had filed charges with the EEOC as required by Title VII. See II App. at 342-44. This timely appeal ensued.

II

A

At oral argument, Defendants for the first time argued that the ADA does not validly abrogate the States' Eleventh Amendment immunity. Ordinarily the failure to raise an issue in the district court and in the opening brief to this court would waive the argument. See Smith v. Rogers Galvanizing Co., 128 F.3d 1380, 1385-86 (10th Cir. 1997) ("Generally, we will not consider an issue that was not raised and resolved in the trial court."), on rehearing, 148 F.3d 1196 (10th Cir. 1998). Claims of sovereign immunity, however, present an exception to that general rule. See In re Talbot, 124 F.3d 1201, 1205 (10th Cir. 1997) ("Although the general rule in the Tenth Circuit is that the court will not consider an issue raised for the first time on appeal, the United States' claim of sovereign immunity presents an exception to the general rule."); see also Mascheroni v. Board of Regents of University of California, 28 F.3d 1554, 1559 (10th Cir. 1994) ("We need not decide whether we are required or merely authorized to consider sua sponte the Eleventh Amendment's applicability because, in either event, the law is clear that we may consider whether the Eleventh Amendment bars Dr. Mascheroni's state law claims against the Board of Regents.").

Supreme Court precedent and decisions of this court establish that deciding the Eleventh Amendment issue is not beyond our jurisdictional grasp and that the issue should be decided. In Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 466 (1945), the Supreme Court considered the "conduct" of the Indiana Attorney General in determining whether the state had waived its sovereign immunity from suit. The Attorney General had appeared in both the federal district court and the court of appeals where ...