United States District Court, D. Colorado
CHRISTINA E. GUERRERO, Plaintiff,
DENVER HEALTH & HOSPITAL AUTHORITY, a body corporate and a political subdivision of the State of Colorado, Defendant.
Brooke Jackson United States District Judge.
moves to remand this case to the District Court for the City
and County of Denver [ECF No. 13]. The motion is granted.
Guerrero worked for Denver Health and Hospital Authority
(“Denver Health”) for fifteen years before
resigning in March 2015. ECF No. 1-1 at ¶¶ 3,
45-50. Ms. Guerrero suffers from keratoconus, an eye disorder
that results in progressive thinning of the cornea.
Id. ¶ 5. She says she can enjoy a productive
work life with appropriate accommodations, but otherwise she
risks becoming blind. Id. For most of her time at
Denver Health, Ms. Guerrero worked remotely from a home
office that was equipped with such accommodations, including
special lighting, wood floors, and an HVAC humidifier.
Id. ¶ 6.
February 2013 Denver Health required Ms. Guerrero to begin
working onsite for indefinite periods of time. Id.
¶ 14. Ms. Guerrero refused to comply and was fired.
Id. She contested this termination, however, and was
reinstated under a settlement agreement (“the
Settlement Agreement”) that provided for workplace
accommodations so that she could work onsite. Id.
Guerrero went back to work in September 2013, primarily from
her home office, but she alleges that she soon faced a
pattern of harassment. Id. ¶¶ 17-18. She
claims that Denver Health never provided the ergonomic work
station or computer monitor it had pledged in the Settlement
Agreement. Id. ¶ 18. When Ms. Guerrero
requested Family Medical Leave Act (“FMLA”) leave
in May 2014, her request was initially denied before it was
approved. Id. ¶ 19. During and after Ms.
Guerrero's FMLA leave, her work was audited and allegedly
misrepresented to make it appear that her performance was
inadequate. Id. ¶¶ 22-26. Her health
deteriorated at the end of 2014, so she requested and was
granted Americans with Disabilities Act leave. Id.
¶¶ 28-29. On her return in February 2015, she was
required to work onsite without the promised workplace
accommodations. Id. ¶¶ 30-36. She tried
working for a week without the accommodations but began
having eye pain and sought emergency treatment. Id.
¶¶ 37-38. The following week Ms. Guerrero met with
Denver Health management but made no progress in obtaining
the needed accommodations, so she resigned. Id.
January 4, 2017 Ms. Guerrero filed suit against Denver Health
in the Denver District Court. Id. at 1. She claims
that Denver Health is liable for: 1) retaliatory constructive
discharge “because she has been participating in
protected activities[, ] including objecting to illegal or
improper actions by her employer, ” “for
exercising her rights under the FMLA, ” and
“because she has insisted that Denver Health honor its
obligations set forth in the Settlement Agreement”; (2)
violation of the Colorado Anti-Discrimination Act; and (3)
breach of the Settlement Agreement. Id. ¶¶
following week, Denver Health filed a notice of removal in
this Court. ECF No. 1. Denver Health argues that Ms.
Guerrero's retaliation claim arises under federal law
because it references the FMLA, so this Court has original
jurisdiction over that claim and supplemental jurisdiction
over her other claims. Id. at 2.
January 25, 2017 Ms. Guerrero filed a motion to remand this
case back to the Denver District Court. ECF No. 13. She
contends that her retaliation claim does not arise under
federal law, so removal is improper. Id. at 5-7. The
motion has been fully briefed. See ECF Nos. 15, 17.
action filed in a state court may be removed to federal court
if the dispute “aris[es] under” federal law.
See 28 U.S.C. §§ 1331, 1441(a). Although
the U.S. Constitution allows Congress to grant federal courts
jurisdiction over all cases in which an issue of federal law
“forms an ingredient, ” Osborn v. Bank of
U.S., 22 U.S. 738, 823 (1824), the statutory grant of
jurisdiction has been construed more narrowly. A federal
court generally has original jurisdiction over a dispute only
if a question of federal law appears on the face of its
well-pleaded complaint. See Beneficial Nat. Bank v.
Anderson, 539 U.S. 1, 6 (2003).
Health argues that Ms. Guerrero explicitly pled a claim under
the FMLA, and that no state law could provide a basis for
this claim on the facts alleged. ECF No. 15 at 1-2. To
establish a prima facie case of retaliation under the FMLA, a
plaintiff must show that: “(1) she availed herself of a
protected right under the FMLA; (2) she was adversely
affected by an employment decision; and (3) there is a causal
connection between the two actions.” Morgan v.
Hilti, Inc., 108 F.3d 1319, 1325 (10th Cir. 1997). Here,
Ms. Guerrero alleges that she has “exercise[ed] her
rights under the FMLA, ” suffered “adverse
employment actions, ” and that this retaliation was
prompted “in part” by her decision to avail
herself of her FMLA rights. ECF No. 1-1 at ¶ 58. Denver
Health is therefore correct that these allegations could
state a claim under the FMLA.
Guerrero's complaint could also be read to state a claim
under Colorado law. In Colorado, “the public policy
exception allows at-will employees to pursue claims for
wrongful discharge if they allege that they were discharged
because they engaged in conduct that is protected or
encouraged as a matter of public policy.” Kearl v.
Portage Envtl., Inc., 205 P.3d 496, 499 (Colo.App.
a plaintiff may state a claim for retaliatory discharge in
violation of public policy by alleging that he or she was
employed by the defendant; that the defendant discharged him
or her; and that the defendant discharged him or her in
retaliation for exercising a job-related right or performing
a specific statutory ...