                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                 February 9, 2009
                             FOR THE TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                    Clerk of Court

    RENEE ATWELL; VIVIAN
    BRADLEY; TERRY LEE; YVETTE
    MARTINEZ HOCHBERG; ODIN
    GOMEZ; MEKELA RIDGEWAY;
    CATHIE GORDON; KATIE MOORE,

                 Plaintiffs-Appellants,

    v.                                                   No. 08-1107
                                               (D.C. Nos. 1:06-CV-02262-CMA-
    PATRICIA GABOW, in her individual           MJW and 1:07-CV-02063-JLK)
    and official capacity as Chief                         (D. Colo.)
    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.


                              ORDER AND JUDGMENT *

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not binding precedent, except under the doctrines of law of the case, res judicata,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


*
 (...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-
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).

                                          -3-
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.




                                          -4-
      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

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