Case 1:10-cv-00290-MSK-MJW Document 1 Filed 02/10/10 USDC Colorado Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No: ________________

ALLSTATE SWEEPING, LLC

a Colorado Limited Liability Company,

Plaintiff,
v.

CITY AND COUNTY OF DENVER,

a municipal corporation,

DENVER DEPARTMENT OF AVIATION,

a Department of the City and County of Denver,

APRIL HENDERSON,

CALVIN BLACK,

STEVE DRAPER,

RUTH RODRIGUEZ,

And

ONE OR MORE JOHN DOES,

Defendants.
______________________________________________________________________________

COMPLAINT
______________________________________________________________________________

Allstate Sweeping, LLC, by its attorney Anne T. Sulton, and for its causes of action

against Defendants, states:

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NATURE

1. This action is brought pursuant to 42 U.S.C. §§ 1981, 1983, 1988, and 2000d et

seq. Title VI, to redress unlawful discrimination based upon race and/or retaliation for

complaining about racial discrimination, in connection with a purchase order worth up to

$499,999 and a multi-year contract worth up to $1.2 million to provide pressure washing services

at Denver International Airport.

JURISDICTION AND VENUE

2. This Court is vested with jurisdiction over Plaintiff’s claims pursuant to 42 U.S.C.

§§ 1981, 1983, 1988, 2000d and 28 U.S.C. §§ 1331 and 1343.

3. The unlawful practices alleged herein were committed within the judicial district

of the U.S. District Court for the District of Colorado. Venue of this action is vested in this Court

pursuant to 28 U.S.C. § 1391.

PARTIES

4. Plaintiff Allstate Sweeping, LLC (hereinafter “Allstate”) is owned and operated

by white females, and is engaged in the business of providing pressure washing services. It is

based in Colorado, with offices located at 10150 East 106th Avenue, Brighton, Colorado. Since

2002, this small business has enjoyed a reputation of providing excellent building maintenance

services to large corporate and government agency clients throughout Colorado, and currently

has an A+ rating with the Better Business Bureau. In 2005, Allstate agreed to provide pressure

washing services at Denver International Airport. It entered into two separate contracts (a

purchase order worth up to $499,999 and a multi-year contract worth up to $1.2 million) with

Defendant City and County of Denver.

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5. Defendant City and County of Denver (hereinafter “City”) is a municipal

corporation or governmental entity. One of its units or departments is the Defendant Department

of Aviation.

6. Defendant Department of Aviation (hereinafter “Aviation”) is a unit or

department of the City. It controls and oversees the operations of Denver International Airport

(hereinafter “DIA”). It manages purchase orders and multi-year contracts to provide services at

DIA, and it assigns and oversees the work of Denver employees working at DIA, including

Defendants April Henderson, Calvin Black, Steve Draper and Ruth Rodriguez.

7. At all times material hereto, Defendant April Henderson was a contract manager

employed by the City, and working at DIA. She was assigned by Aviation to manage the

purchase order and the multi-year contract between the City and Plaintiff. She is African

American. She is one of the individuals involved in making the materially adverse decisions

complained of herein. She is being sued in both her official capacity as a contract manager and

in her individual capacity.

8. At all times material hereto, Defendant Calvin Black was a contract compliance

technician employed by the City, and working at DIA. His job duties included monitoring

Plaintiff’s compliance with the purchase order and the multi-year contract between the City and

Plaintiff. He is African American. He is one of the individuals involved in making the materially

adverse decisions complained of herein. He is being sued in both his official capacity as a

contract compliance technician and in his individual capacity.

9. At all times material hereto, Defendant Steve Draper was a deputy manager for

maintenance employed by the City and working at DIA. He was assigned by Aviation to directly
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supervise the work of Defendants April Henderson and Calvin Black. He is African American.

He is one of the individuals involved in making the materially adverse decisions complained of

herein. He is being sued in both his official capacity as a deputy manager for maintenance and in

his individual capacity.

10. At all times material hereto, Defendant Ruth Rodriguez was deputy manager of

maintenance and engineering, and employed by the City and working at DIA. She supervised the

work of Defendants April Henderson, Calvin Black and Steve Draper. She is Hispanic. She is

one of the individuals involved in making the materially adverse decisions complained of herein.

She is being sued in both her official capacity as deputy manager of maintenance and

engineering and in her individual capacity.

11. Defendant(s) One or More John Does, at all times material hereto, was/were

employee(s) of the City. He/she/they are one or more of the individual(s) involved in making the

materially adverse decisions and/or taking the materially adverse actions complained of herein.

He/she/they is/are being sued in both his/her/their official and individual capacities.

ALLEGATIONS OF FACT FOR ALL CAUSES OF ACTION

12. Plaintiff incorporates here all paragraphs alleged above.

13. On December 12, 2005, John Guldaman, a buyer for the City, sent to Plaintiff a

letter, informing Plaintiff that it submitted the winning low bid proposal for a multi-year contract

to provide pressure washing services at DIA.

14. Plaintiff was the first and only white female owned company winning such a bid

to provide pressure washing services at DIA.

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15. Plaintiff is fully qualified to perform all pressure washing services referenced or

listed in the multi-year contract into which it entered with the City.

16. On December 29, 2005, Mr. Guldaman sent to Plaintiff a letter, informing

Plaintiff that it was “authorized and directed to proceed, on an emergency basis, with the

provision of pressure washing services to Denver International Airport … Pressure washing

services under this emergency authorization shall begin on January 1, 2006 and will end upon the

final execution of the formal agreement with the City and approval by the City Council.” This

“emergency authorization” also is known as a purchase order, and had a value up to $499,999.

17. Plaintiff began work at DIA in early 2006 under the purchase order.

18. Plaintiff substantially and satisfactorily performed its pressure washing services at

DIA under the purchase order.

19. On or about April 7, 2006, a City “Contract Approval and Preparation Request”

was generated, stating that the multi-year contract term was from May 1, 2006 to July 31, 2008,

and that this multi-year contract has a value of $1.2 million. Defendant Steve Draper signed this

document as an authorizing City official.

20. On July 24, 2006, Christy McWilliams, the City’s Procurement Analyst, sent to

Plaintiff a letter informing Plaintiff the multi-year contract was signed on June 6, 2006, and

advising Plaintiff of the City’s billing and invoicing procedures. Defendant Ruth Rodriguez, by

her position as the deputy manager, was identified in the multi-year contract as the authorized

City official to administer this contract.

21. The multi-year contract lists the specific type of work that will be done and

contains a schedule of when certain tasks should be completed, e.g., some tasks require monthly
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cleaning and others require weekly cleaning. Each specific task pays a certain sum, with

payments for each specific task ranging from $200 to $2,800.

22. In or about July 2006, Plaintiff was authorized to begin work at DIA under the

multi-year contract.

23. Plaintiff substantially and satisfactorily performed its pressure washing services at

DIA under the multi-year contract.

24. From the beginning of its work at DIA (while working under the purchase order

and before the multi-year contract took effect), Plaintiff was mistreated by Defendants.

Defendants April Henderson and Calvin Black, under the supervision of and with the knowledge

and approval of Mr. Draper and Ms. Rodriguez, mistreated Plaintiff. The mistreatment included,

but is not limited to:

a) Ms. Henderson and Mr. Black requiring Plaintiff to purchase or lease $161,000 in

additional equipment that was not: (1) mentioned in the bid accepted by the City; (2) anticipated

by Plaintiff during the bidding and contractual processes; nor (3) needed for Plaintiff to

satisfactorily complete its work under the purchase order or the multi-year contract;

b) Mr. Black demanding Plaintiff perform tasks in a manner that directly caused

Plaintiff to lose substantial amounts of money and were not: (1) mentioned in the bid accepted by

the City; (2) anticipated by Plaintiff during the bidding and contractual processes; nor (3) needed

for Plaintiff to satisfactorily complete its work under the purchase order or the multi-year

contract; and
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c) Ms. Henderson telling Plaintiff that if it complained, and did not do things the

way she told them, then Plaintiff would lose its bond, meaning Plaintiff would not be able to bid

on many public and private sector jobs in the future because they require a bond.

25. Plaintiff understood it was not appropriate to give gifts to any City employee.

Charyn Billick, one of the contract compliance technicians Ms. Henderson assigned to monitor

Plaintiff’s work, told Plaintiff other contractors purchased gifts for City employees and that

Plaintiff might be more successful if it did so. In response, Plaintiff wrote a letter to Ms.

Henderson, stating: “We have been told by several sources that we would need to play the

politics (including wining, dining and gift giving) to work successfully at DIA. We find this

reprehensible and refuse to buckle under to such demands.”

26. Plaintiff understood it would be working as an independent contractor, not as an

employee of the City. Plaintiff understood the purchase order and the multi-year contract were

contracts to accomplish a particular result using Plaintiff’s methods with respect to the physical

conduct involved in the performance of the work, and, except as to the result of the work, its

work was not subject to the control of the City. Plaintiff believed it retained the right to control

the manner in which the work would be done, and is subject to the control of the City essentially

only in terms of being responsible for a certain end product or result.

27. Ms. Henderson and Mr. Black, however, under the supervision of and with the

knowledge and approval of Mr. Draper and Ms. Rodriguez, treated Plaintiff as though it was an

employee, micro-managing every detail of its work, including, but not limited to:

a) telling Plaintiff’s crew how to do their jobs;

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b) conducting impromptu inspections of Plaintiff’s equipment that caused Plaintiff’s

crew to be idle for three hours at a time; and

c) demanding the City’s contract compliance monitors at DIA drive Plaintiff’s trucks

to determine whether or not the wheels were properly aligned.

28. Mr. Draper, Ms. Rodriguez, Ms. Henderson and Mr. Black knew that they, and

the other City employees assigned to monitor Plaintiff’s compliance with the purchase order and

the multi-year contract, were not qualified by training, education or experience to conduct such

equipment and truck inspections.

29. While working under the purchase order before the multi-year contract took

effect, and while working under the multi-year contract (which took effect in or about July

2006), Plaintiff complained to many City officials, including Denver’s Mayor, about the constant

harassment and hostile work environment created by Ms. Henderson and Mr. Black, and ignored

and/or ratified by their supervisors Mr. Draper and Ms. Rodriguez. Plaintiff also complained to

City officials about Ms. Henderson’s and Mr. Black’s manipulation of the purchase order’s and

the multi-year contract’s tasks list or work schedule, which directly caused Plaintiff to lose

substantial amounts of money.

30. On May 24, 2007, Plaintiff sent a lengthy letter to Ms. Henderson, and several

other City employees, including, but not limited to, Ms. Henderson’s supervisor Mr. Draper. In

this letter Plaintiff states:

We stand buy (sic) the fact that we, as a company, are being discriminated against and we
are pursuing this with the proper authorities. … It seems apparent that there is no
amount of money or equipment that Allstate Sweeping can provide that will overcome
the grudge and discriminatory behavior shown against our company. … We question if
any other contractors were subjected to similar inspections and request a list of those that
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were. We believe that we will find, once again, that we are being harassed and
discriminated against by DIA staff.”

31. All Defendants were aware of Plaintiff’s numerous complaints of discrimination,

harassment, and a hostile work environment, resulting in Plaintiff losing hundreds of thousands

of dollars. Defendants did nothing to remedy the situation.

32. On May 30, 2007, Ms. Rodriguez sent Plaintiff a contract termination letter,

which she copied to other City officials, including Mr. Draper, stating:

The City and County of Denver is hereby notifying Allstate Sweeping LLC., (sic) of its
intent to terminate, in whole, the above referenced contract, dated June 6, 2006 at DIA.
In accordance with Section 10.01 – TERMINATION FOR CONVENIENCE OF THE
CITY, on pages 15 and 16 of the above referenced contracts, (sic) the Manager of
Aviation terminates the contract in the best interests of the City and gives notice that said
termination is to be effective July 1, 2007.

33. Defendants City and Aviation approved and/or ratified the decision to terminate

Plaintiff’s multi-year contract less than one week after Plaintiff sent its letter complaining about

discrimination.

34. Defendants City and Aviation have continued to retaliate against Plaintiff, and

that retaliation continues to this day. For example, in May 2008, Kenton Janzen, a City buyer

stationed at DIA, sent an email to Katherine Chavez, a City Administrative Assistant, in which

he stated: “Bid was awarded to All State Sweeping (sic) in 06 who defaulted on contract in 07

due to lack of performance and lack of proper equipment.” Since May 2008, Mr. Janzen and

other City officials have orally and/or in writing repeated this false statement. On information

and belief, Mr. Janzen and other City officials received this false information from Defendants
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Henderson, Black, Draper and/or Rodriguez because they were the persons managing and/or

monitoring Plaintiff’s contract.

35. No similarly-situated contractor was similarly treated by Defendants.

36. After Defendants terminated Plaintiff’s multi-year contract, Defendants hired

Pride Services, Inc., a white male owned and operated company, to do the work Plaintiff had

contracted to perform.

37. Three months later, on August 23, 2007, Pride Services, Inc. quit working, stating

in a letter sent to the City:

The lack of truth fullness (sic) and the contract maintenance manipulation of the contract
and our processes, caused PRIDE to loose (sic) $10,600.00 in these few months. … I
feel the city employees should be held to task and a higher standard of ethics. The waste
caused by these dilatory, untrustworthy people are putting our security at risk!

38. The City and Aviation were aware they had untrained, unskilled, unqualified, and

unprofessional people occupying important decision-making positions regarding multi-million

dollar contracts in the DIA maintenance unit. For example, the position occupied by Ms.

Henderson requires a college degree, preferably in a business related field of study. Ms.

Henderson has only a high school diploma.

39. Furthermore, Defendants long have been aware of complaints by white female

owned companies, alleging discrimination in the recruitment, hiring and retention of white

female vendors and contractors. For example, please see Constructing Denver’s New Airport:

Are Minorities and Women Benefitting? (United States Commission on Civil Rights, July 1992).

More recently, on May 5, 2006, NERA Economic Consulting issued its 269-page report that was
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commissioned by the City. Entitled Race, Sex, and Business Enterprise: Evidence from Denver,

Colorado, at page 1, the report states:

We found both statistical and anecdotal evidence of business discrimination against

M/W/DBEs in virtually all major procurement categories and data sources we examined.
Our examination included an analysis of Denver’s own public sector contracting behavior
as well as that of its prime contractors and consultants.

FIRST CLAIM FOR RELIEF

(42 U.S.C. §§1981 AND 1983)

40. Plaintiff incorporates here all paragraphs alleged above.

41. 42 U.S.C. § 1983 provides that every person who, under color of law, subjects, or

causes to be subjected, any person to the deprivation of any rights, privileges, or immunities

secured by the United States Constitution and laws, shall be liable to the party injured.

42. Defendants were acting under the color of law.

43. At the time of Defendants’ actions complained of herein, there were federal laws

clearly establishing Plaintiff’s rights to be free from racial discrimination and retaliation for

complaining about racial discrimination, including 42 U.S.C. § 1981, and Defendants were

aware of these rights.

44. 42 U.S.C. § 1981 protects Plaintiff from racial discrimination, and retaliation for

complaining about racial discrimination, in the making and performance of contracts, and in the

enjoyment of all benefits, privileges, terms, and conditions of contractual relationships.

45. Plaintiff is a white female owned company. The individuals personally involved

in making the materially adverse decisions or taking the materially adverse actions against

Plaintiff, include, but are not limited to, Ms. Henderson, Mr. Black, Mr. Draper and Ms.

Rodriguez. They are African American or Hispanic.

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46. Defendants’ actions were motivated by Plaintiff’s race and/or in retaliation for

Plaintiff complaining about racial discrimination.

47. Plaintiff engaged in protected activity when it complained to Defendants about

racial discrimination when working under the purchase order and the multi-year contract,

including, but not limited to, when Plaintiff sent the complaint letter on May 24, 2007.

48. Defendants’ actions complained of herein were materially adverse and well might

dissuade a reasonable contractor from making a discrimination complaint

49. Plaintiff suffered adverse actions that had immediate, practical and tangible

adverse effects amounting to a significant change in Plaintiff’s contractor status, including, but

not limited to:

a) being notified in writing, on May 30, 2007, that its multi-year contract was being

terminated;

b) being treated like an employee rather than as an independent contractor when

working under the purchase order and the multi-year contract; and

c) being forced to purchase $161,000 in additional equipment that was not necessary

to complete its work under the purchase order and the multi-year contract.

50. There exists a causal connection between Plaintiff’s protected activity and

Defendants’ materially adverse actions, including, but not limited to, the temporal proximity

between the time Plaintiff sent its complaint letter on May 24, 2007, and the time Ms. Rodriguez

sent the termination letter on May 30, 2007.

51. The City and Aviation were aware of Plaintiff’s complaints of racial

discrimination while Plaintiff worked under the purchase order and the multi-year contract. The
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City and Aviation had an opportunity to prevent the harm from occurring, but took no reasonable

remedial steps to address Plaintiff’s complaints of intentional illegal discrimination. The City’s

and Aviation’s failure to act caused Plaintiff to suffer harm while Plaintiff worked under the

purchase order and the multi-year contract.

52. The City and Aviation approved, condoned, and/or ratified the intentional illegal

discriminatory conduct of their employees, and/or they purposely ignored their employees’

intentional illegal discriminatory conduct while Plaintiff worked under the purchase order and

the multi-year contract.

53. Alternatively and in combination, the City’s deliberately indifferent failure to

ensure adequate EEO-compliance, monitoring and/or supervision of Aviation’s and City

employees’ conduct has caused, and threatens to continue causing, violations of Plaintiff’s

statutory rights.

54. Defendants violated 42 U.S.C. § 1983, when acting under the color of law, they

intentionally illegally denied Plaintiff’s rights to be free from racial discrimination and retaliation

as guaranteed by 42 U.S.C. § 1981.

55. Defendants' acts and omissions were carried out pursuant to their policies and/or

practices.

56. The foregoing conduct constitutes intentional illegal discrimination prohibited by

42 U.S.C. §§ 1981 and 1983.

57. The unlawful actions taken against Plaintiff, as alleged herein, were taken in

malicious, willful, wanton, reckless indifference to, and reckless disregard of Plaintiff’s rights as

guaranteed by 42 U.S.C. §§ 1981 and 1983.

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58. As a direct, foreseeable, and proximate result of Defendants' intentional illegal

discriminatory conduct complained of herein, Plaintiff suffered financial losses, injuries, and

other damages, including, but not limited to, lost past and future income and profits, and damage

to its reputation. These injuries and damages continue into the present and will continue into the

foreseeable future.

59. Plaintiff requests relief as hereinafter provided.

SECOND CLAIM FOR RELIEF

(42 U.S.C. §§1983 AND 2000d, TITLE VI)

60. Plaintiff incorporates here all paragraphs alleged above.

61. 42 U.S.C. § 1983 provides that every person who, under color of law, subjects, or

causes to be subjected, any person to the deprivation of any rights, privileges, or immunities

secured by the United States Constitution and laws, shall be liable to the party injured.

62. Defendants were acting under the color of law.

63. At the time of Defendants’ actions complained of herein, there were federal laws

clearly establishing Plaintiff’s rights to be free from racial discrimination, including 42 U.S.C. §

2000d, Title VI, and Defendants were aware of these rights.

64. Title VI protects Plaintiff from racial discrimination. Title VI states that no

person in the United States shall be discriminated against on the basis of race, color, or national

origin by an entity receiving Federal financial assistance. It provides a private right of action for

disparate treatment claims of racial discrimination.

65. On information and belief, the City and Aviation receive Federal financial

assistance.

66. Plaintiff brings its Title VI claim of disparate treatment per 42 U.S.C. § 1983.
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67. Defendants Henderson, Black, Draper and Rodriguez acted intentionally in

facilitating and maintaining a racially hostile work environment and harassing Plaintiff while it

worked under the purchase order and the multi-year contract, and in terminating Plaintiff’s multi-

year contract.

68. Plaintiff repeatedly informed City officials of the harassment and discrimination

Plaintiff experienced while working under the purchase order in early 2006 (before the multi-

year contract was in effect), and while working under the multi-year contract (from mid 2006 to

mid 2007).

69. The City took no steps to remedy the situation, and has allowed its employees to

continue to spread the false statement about the reason for termination of Plaintiff’s multi-year

contract with the City.

70. The City had actual knowledge of and was deliberately indifferent to the

harassment that was so severe, pervasive and objectively offensive that it deprived Plaintiff of

the benefits, privileges, terms and conditions of Plaintiff’s purchase order and Plaintiff’s multi-

year contract with the City.

71. The foregoing conduct constitutes intentional illegal discrimination prohibited by

42 U.S.C. §§ 1983 and Title VI.

72. The unlawful actions taken against Plaintiff, as alleged herein, were taken in

malicious, willful, wanton, reckless indifference to, and reckless disregard of Plaintiff’s rights as

guaranteed by 42 U.S.C. §§ 1983 and Title VI.

73. As a direct, foreseeable, and proximate result of Defendants' intentional illegal

discriminatory conduct complained of herein, Plaintiff suffered financial losses, injuries, and
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other damages, including, but not limited to, lost past and future income and profits, and damage

to its reputation. These injuries and damages continue into the present and will continue into the

foreseeable future.

74. Plaintiff requests relief as hereinafter provided.

RELIEF REQUESTED

WHEREFORE, Plaintiff respectfully requests this honorable Court enter judgment for it

on its Complaint against Defendants, jointly and severally, and provide the following relief:

A. A declaratory judgment that the practices complained of herein are unlawful and

violate 42 U.S.C. §§ 1981, 1983, 1988 and 2000d, Title VI, and an injunction prohibiting

Defendants from violating these laws;

B. An order that Defendants pay, jointly and severally, all damages Plaintiff

sustained as a result of Defendants’ illegal conduct, including, but not limited to, compensatory

damages for lost past and future income and profits, damages to its reputation, and all other

damages provided for by law, plus pre- and post-judgment interest;

C. Costs of action incurred herein, including reasonable attorneys' fees and expert

fees, to the extent available under federal laws;

D. Retain jurisdiction over this action to assure full compliance with the Orders of

the Court; and

E. Such other and further legal and equitable relief as this Court deems just and

reasonable under the circumstances.

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DEMAND FOR JURY TRIAL

Plaintiff hereby respectfully requests a jury trial on all causes of action and claims with

respect to which it has a right to jury trial.

Dated this 10th day of February, 2010.

/s/Anne T. Sulton
Anne T. Sulton
Sulton Law Offices
Attorney for Plaintiff
P.O. Box 371335
Milwaukee, WI 53237
Phone: 360-870-6000
Email: annesulton@gmail.com