Court Opinion: 10th Circuit Court of Appeals Opinion for Nov. 13

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Perez v. City and County of Denver

David Perez appealed the district court’s order denying his motion to file a third amended complaint and dismissing his case with prejudice. 

Perez was a firefighter with the Denver Fire Department when on March 13, 2019, he sustained a debilitating line-of-duty injury to his right hand while fighting a house fire. As a result of the injury, he was placed on work restrictions. According to Perez, between March 19, 2019, and Nov. 13, 2019, he received various modified duty positions that either didn’t comply with his work restrictions or exacerbated his injury and he was passed over for other, more appropriate positions within the DFD for which he was qualified, the opinion noted. On Oct. 21, 2019, Perez filed a complaint with the Colorado Civil Rights Division, which alleged he was retaliated against and denied the use of leave without pay to attend a medical appointment because he had exhausted his sick leave to be treated for his LOD injury.

Perez was placed on leave without pay on Dec. 6, 2019. Based on his belief the DFD had failed to accommodate his line of duty injury and forced him to quit, on Feb. 27, 2020, Perez informed DFD’s chain of command he was taking disability retirement and his employment would end on March 2. On Dec. 28, 2020, he filed a charge of disability discrimination and retaliation with the Equal Employment Opportunity Commission based on events from March 19, 2019, through Feb. 27, 2020, when he tendered his resignation.

The EEOC issued Perez a right-to-sue letter on May 4, 2021, and three days later — May 7 — Perez filed a complaint in the U.S. District Court for the District of Colorado alleging discrimination and harassment, retaliation and failure to accommodate, in violation of federal and state law, the opinion added.

Acting under the magistrate judge’s order, Perez filed an amended complaint. But after reviewing the amended complaint, the magistrate judge still found several deficiencies and ordered Perez to submit a second amended complaint. This time, counsel entered an appearance on behalf of Perez, and filed a second amended complaint, which asserted six claims for relief: race and national origin discrimination in violation of Title VII of the U.S. Constitution, race and national origin discrimination in violation of the Colorado Anti-Discrimination Act, violation of the Americans With Disabilities Act; retaliation in violation of the ADA, disability discrimination in violation of CADA and disability retaliation in violation of CADA.

The City and County of Denver moved to dismiss. The district court found Perez failed to exhaust his administrative remedies as to the CADA claims because the second amended complaint failed to allege he received a right-to-sue letter from the CCRD. The court dismissed the CADA claims without prejudice. The court also dismissed the Title VII and ADA claims without prejudice on the grounds Perez had failed to exhaust his administrative remedies. In doing so, the court specifically declined to consider Perez’s relation-back argument and exhibits “in the context of this [Federal Rules of Civil Procedure”] 12(b)(6) motion” on the grounds that Perez “cannot amend [his] complaint by adding factual allegations in response to [Denver’s] motion to dismiss.”

Perez, through counsel, moved to file a third amended complaint. Attached to the motion was the proposed complaint, which dropped the Title VII and CADA claims, and alleged two claims under the ADA: retaliation and discrimination. Denver opposed the motion, arguing the proposed amendment was futile because Perez failed to file a charge of discrimination with the EEOC within 300 days of his constructive discharge, which accrued on Feb. 27, 2020. Perez filed an untimely reply in which he first raised the issue of whether any amended charges of discrimination relate back to previous charges filed with the CCRD or EEOC and thus should be deemed timely. Denver moved to strike the untimely reply, Perez responded and Denver filed a reply, the opinion continued. 

The district court determined Perez’s relation-back argument, raised for the first time in his reply, was waived. The court further found Perez’s constructive discharge accrued on Feb. 27, 2020, when he gave notice to the DFD chain of command, and therefore, that his Dec. 28, 2020, EEOC complaint was untimely as to any acts pre-dating the constructive discharge and the discharge itself because it was filed more than 300 days after his constructive discharge. As a result, the court denied Perez’s motion to file the third amended complaint as futile because it couldn’t survive summary judgment and dismissed the case with prejudice. Perez filed a pro se appeal.

After evaluation, the 10th Circuit Court of Appeals affirmed the judgment of the district court.

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