* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

February 9, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RENEE ATWELL; VIVIAN

BRADLEY; TERRY LEE; YVETTE

MARTINEZ HOCHBERG; ODIN

GOMEZ; MEKELA RIDGEWAY;

CATHIE GORDON; KATIE MOORE,

Plaintiffs-Appellants,

v.

PATRICIA GABOW, in her individual

and official capacity as Chief

Executive Officer and Medical

Director of Denver Health and

Hospital Authority; DENVER

HEALTH AND HOSPITAL 

AUTHORITY; GREG ROSSMAN,

in his individual capacity and in his

official capacity as Chief Human

Resources Director of Denver Health

and Hospital Authority; WENDY

ALEXANDER, in her individual

capacity and in her official capacity as

Human Resources Director of Denver

Health and Hospital Authority,

Defendants-Appellees.

No. 08-1107

(D.C. Nos. 1:06-CV-02262-CMAMJW and 1:07-CV-02063-JLK)

(D. Colo.)

ORDER AND JUDGMENT*
*

(...continued)

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

-2-

Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.

Renee Atwell brought a federal-court employment discrimination action

under 42 U.S.C. §§ 1981 and 1988; Title VII of the Civil Rights Act, 42 U.S.C.

§ 2000e to 2000e-17; and Colorado state statutes. After Dr. Atwell was granted

leave to file an amended complaint, Vivian Bradley, Terry Lee, and Yvette

Martinez Hochberg joined her action. The amended complaint added cites to

42 U.S.C. § 1983 and sought class status. Citing §§ 1981, 1983, and 1988, Odin

Gomez, Mekela Ridgeway, Cathie Gordon, and Katie Moore filed a substantially

similar state-court complaint, also seeking class action status. Appellees removed

that action to federal court, and the district court consolidated the two suits. 

Appellants formally moved to certify a class action under Fed. R. Civ. P. 23(a)

and 23(b)(2) and/or 23(b)(3). The district court denied the motion, and shortly

thereafter dismissed the majority of appellants’ claims under Fed. R. Civ. P.

12(b)(6). Appellants appealed. 

Jurisdiction

The district court’s orders did not resolve all issues between all parties in

these consolidated cases. This court has jurisdiction to review the Rule 12(b)(6)
-3-

dismissal order because the district court entered final judgment on those claims

pursuant to Fed. R. Civ. P. 54(b). While the order denying class certification did

not decide any “claims” or dismiss any “parties,” the issues presented in the

certification order are inextricably intertwined with and/or necessary to ensure

meaningful review of the Rule 12(b)(6) dismissal order. Appellants seek to assert

the dismissed claims on behalf of a class and intertwine their appellate arguments

as to why they should be allowed to proceed. And as the district court

determined, resolving the class certification issues is necessary to refine the Rule

12(b)(6) analysis. We recognize that pendant appellate jurisdiction “is generally

disfavored,” Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 970 (10th Cir. 2006)

(quotation omitted), but we conclude that exercising such jurisdiction is

appropriate in this case. See Swint v. Chambers County Comm’n, 514 U.S. 35, 51

(1995) (suggesting that pendant appellate jurisdiction is available when issues are

“intextricably intertwined” or review is “necessary to ensure meaningful review

of” the reviewable order); Moore v. City of Wynnewood, 57 F.3d 924, 930

(10th Cir. 1995) (exercising pendant appellate jurisdiction pursuant to Swint).

Motion for Class Certification

“We review de novo whether the district court applied the correct legal

standard in its decision to grant or deny class certification; when the district court

has applied the proper standard, the decision will be reversed only for abuse of

discretion.” Carpenter v. Boeing Co., 456 F.3d 1183, 1187 (10th Cir. 2006). 
-4-

Appellants do not argue that the district court applied the wrong legal standard, so

our review is for abuse of discretion.

The district court denied certification because the appellants failed to show

all of Rule 23(a)’s requirements (numerosity, commonality, typicality, and

adequacy of representation) and failed to establish their suit satisfied either Rule

23(b)(2) or 23(b)(3) (the types of maintainable class actions that appellants

identified as potentially applicable). We find no abuse of discretion in the district

court’s decision and affirm for substantially the reasons stated in the district

court’s February 28, 2008, Order Denying Motion for Class Certification. 

Motion to Dismiss

Our review of a Rule 12(b)(6) dismissal is de novo. See Duran v. Carris,

238 F.3d 1268, 1270 (10th Cir. 2001). In their opening brief, appellants take

issue only with the district court’s dismissal of their § 1981 claims. Accordingly,

they have waived appellate consideration of the dismissal of their other claims. 

See State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994).

The district court analyzed appellants’ complaints and concluded that the

majority of their § 1981 claims failed to meet the pleading standards set forth in

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-69 (2007). We agree and

affirm for substantially the reasons set forth in the district court’s March 31,

2008, Order on Motions to Dismiss. 
-5-

The district court also dismissed Ms. Ridgeway’s § 1981 retaliation claim

against Wendy Alexander, concluding that under this court’s precedent the claim

was actionable only under Title VII. Several weeks later, the Supreme Court held

that § 1981 encompasses retaliation claims. CBOCS West, Inc. v. Humphries,

128 S. Ct. 1951, 1954-55 (2008). We need not consider the applicability of

CBOCS West on our precedent, however, because the dismissal was nonetheless

proper. See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994)

(“We are free to affirm a district court decision on any grounds for which there is

a record sufficient to permit conclusions of law, even grounds not relied upon by

the district court.” (quotation omitted)). Ms. Ridgeway’s complaint against

Ms. Alexander does not set forth a well-pleaded § 1981 retaliation claim. See

Carney v. City and County of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008)

(setting forth the elements of a § 1981 retaliation claim). Particularly, the

complaint does not adequately allege facts establishing that Ms. Alexander took

an action that a reasonable employee would regard as materially adverse. Thus,

the claim was properly subject to dismissal under Rule 12(b)(6). 

The judgment of the district court is AFFIRMED.

Entered for the Court

John C. Porfilio

Circuit Judge