Opposition to dismissal Unemployment

Date: 2025-05-09

Summary

Plaintiff's Opposition to Defendant's Motion to Dismiss, filed May 9, 2025 as Document 36 in Joshua Abrams v. Division of Unemployment Insurance, et al., Case No. 1:24-cv-03390-RMR, in the U.S. District Court for the District of Colorado. Abrams, proceeding pro se, argues that Eleventh Amendment and Colorado Governmental Immunity Act defenses do not apply because he seeks only prospective injunctive relief under Ex Parte Young. The opposition contends that the Division permits appeals only from formal determinations, which it says foreclosed exhaustion and violated the First and Fourteenth Amendments. It also argues that he has pleaded Title II claims under the Americans with Disabilities Act, citing 28 C.F.R. § 35.106 and 42 U.S.C. § 12132. The filing asks the court to deny the motion so the case may proceed to discovery.

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Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 1
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The United States District Court District of Colorado
901 19th St, Denver, CO 80294 | (303) 844-3433 FILED
UNITED STATES DISTRICT COURT
Plaintiff: Joshua Abrams DENVER, COLORADO
8:02 am, May 09, 2025
v. JEFFREY P. COLWELL, CLERK
Defendant(s): Division of Unemployment Insurance,
JOE BARELA | JEFF FITZGERALD | Etc. ▲COURT USE ONLY▲
Joshua Abrams, Pro Se | abramslive@gmail.com |720-910-4829 Case Number:
1881 E 112th Pl, Northglenn Colorado 80233 1:24-cv-03390-RMR
Division: Courtroom
Plaintiff’s Opposition to Defendant’s Motion to Dismiss

Plaintiff Joshua Abrams respectfully submits this Opposition to Defendants’ Motion to Dismiss.

Defendants’ Motion misstates critical facts, selectively ignores large portions of the evidentiary

record, and relies heavily on conclusory assertions unsupported by either law or fact. Their

approach attempts to reduce this matter to isolated individual grievances rather than engaging

with the systemic constitutional and statutory violations Plaintiff has demonstrated, affecting not

only Plaintiff but thousands of similarly situated Colorado residents.

Even if Defendants’ Motion superficially identifies minor procedural issues or technical defenses

that could, in isolation, be argued under abstract administrative law standards, such arguments

are irrelevant in light of the pervasive, continuing constitutional violations at the heart of this

case. Plaintiff has shown, through both direct personal harm and substantial supporting evidence,

that the Division’s systems and practices systematically deprive claimants of due process, violate

rights secured by the First and Fourteenth Amendments, and fail to comply with federal statutory

obligations under Title II of the Americans with Disabilities Act.
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 2
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Defendants' Motion to Dismiss must be denied so that this case may proceed to discovery and

resolution on the merits, where the full scope of ongoing constitutional and statutory injuries can

be appropriately addressed.

Eleventh Amendment and CGIA Immunity Do Not Apply

Defendants’ invocation of Eleventh Amendment sovereign immunity and the Colorado

Governmental Immunity Act (“CGIA”) is unavailing. Plaintiff seeks only prospective injunctive

relief to remedy ongoing constitutional violations relief that is expressly permitted under Ex

Parte Young. Sovereign immunity does not bar claims for injunctive relief against state officials

sued in their official capacity when enforcing federal constitutional rights.

Nor can the CGIA immunize Defendants from liability where federal rights are at stake. The

Supremacy Clause prohibits states from using immunity doctrines to override obligations

imposed by the U.S. Constitution. Claims alleging ongoing violations of the First and Fourteenth

Amendments fall squarely within federal judicial oversight and must be heard.

Defendants’ assertion that Plaintiff failed to exhaust administrative remedies does not bar this

action because no adverse, appealable decision was ever issued regarding Plaintiff’s 2023

integrity hold. Plaintiff was diverted into a procedurally irrelevant withdrawal appeal, rendering

exhaustion impossible. The inability to appeal a non-existent decision is not a procedural failure

it is the constitutional deprivation itself. Courts do not reward administrative schemes that

prevent access to redress, and due process requires more than a theoretical opportunity to appeal.

See Goldberg v. Kelly (1970).
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 3
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To the extent Defendants invoke qualified immunity for the Executive Director, that defense is

misplaced. The claims challenge systemic and official policies that continue to inflict

constitutional harm, placing them squarely within the Ex Parte Young exception to immunity. As

such, this suit is properly before the Court and must proceed to adjudication on the merits.

Defendants claim that Plaintiff’s allegations are conclusory.

Plaintiff lacked access to Defendants’ responses and internal records at the time of filing the

amended complaint and was therefore unable to identify the precise individual actors and

capacities involved. Since then, Plaintiff’s March 25, 2025 Brief (Dkt. 16) and supporting filings

have clearly articulated that senior officials including Defendants Barela, Fitzgerald, and Branch

Manager Jeff Newcombhad actual knowledge of systemic constitutional violations and failed to

take corrective action

Specific failures include (1) maintaining an inoperative phone system known to deny access to

due process, (2) perpetuating policies that required claimants to reach live agents to request ADA

accommodations without providing any accessible means to do so, and (3) systematically

denying meaningful notice and appeal opportunities following integrity holds. These actions and

omissions are traceable to identifiable individuals in their official roles and constitute violations

of clearly established constitutional rights under the First and Fourteenth Amendments and

federal ADA requirements, rights recognized long before the events at issue. Plaintiff’s factual

pleadings therefore satisfy both the plausibility standards under Iqbal/Twombly and the Tenth

Circuit’s requirement for alleging personal involvement in ongoing constitutional violations,

precluding dismissal at this stage.

Defendants’ Blocked Processes Violate the First and Fourteenth Amendments
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 4
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Plaintiff’s core constitutional grievance arises from Defendants’ systemic restriction of access to

administrative remedies through artificially narrow appeal processes. As documented in

Plaintiff’s March 25, 2025 Brief (Dkt. 16) and supported by Defendants’ own exhibits, the

Division of Unemployment Insurance only permits appeals to be initiated following the issuance

of a formal, appealable determination. If a claimant’s grievances such as the underpayment of

benefits, as in Plaintiff’s case is not reflected in an issued determination, the claimant is

categorically barred from appealing or petitioning for correction, no matter how meritorious or

well-founded the grievance.

This structural flaw violates both the First Amendment right to petition the government for

redress of grievances and the Fourteenth Amendment guarantee of due process. The appeals

system exists in theory but not in functional practice for underpayment disputes and other

non-standard errors, leaving claimants trapped without a means to contest wrongful deprivation

of entitled benefits.

When Plaintiff, after exhausting all informal avenues, attempted to initiate an appeal by

appealing an available withdrawal determination (the only appealable action artificially

available), the administrative law judge explicitly stated that he could only adjudicate the

withdrawal issue and had no jurisdiction to address Plaintiff’s underpayment grievance. Thus,

even diligent efforts by the claimant could not access judicial review or redress, proving the

exhaustion of administrative remedies was not merely impracticable; it was constitutionally

foreclosed by the Division’s own defective systems. Responsibility for these systemic barriers

rests with the following named individuals in their official capacities:
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 5
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● Joe Barela, Executive Director of the Colorado Department of Labor and Employment,

who oversees the entire unemployment system’s structure and bears ultimate

responsibility for constitutional compliance.

● Jeff Fitzgerald, Director of the Division of Unemployment Insurance, who is directly

responsible for the design, operation, and enforcement of appeal procedures and

eligibility determinations.

● Jeff Newcomb, Branch Manager for Customer Services, who oversees claimant

communications and system accessibility, including the appeal initiation process through

MyUI+ and phone lines.

● David Kimball, Call Center Operations Manager, whose declarations confirm that call

centers lack sufficient capacity and callback functions, further impeding appeal access.

● Brandon McClure, Program Manager for MyUI+, for ensuring the online portal allows

for necessary procedural rights, including appeal access and communication.

None of these officials, despite clear notice of systemic failures through audits, media reports,

claimant complaints, and internal metrics, implemented effective reforms to ensure that

claimants like Plaintiff could access appeal rights guaranteed by law and the Constitution. Their

continued operation of defective procedures that block meaningful appeal access constitutes a

knowing, ongoing violation of established First and Fourteenth Amendment protections.

Thus, Plaintiff’s allegations are neither conclusionary nor speculative; they are based on specific

administrative practices, admitted systemic deficiencies, and clear constitutional standards.

Dismissal is inappropriate where systemic unconstitutional conditions are sufficiently pleaded

and directly traceable to identifiable state actors in their official capacities.
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 6
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Plaintiff’s ADA Title II Claims Are Properly Pleaded and Independently Violate Federal Law

Defendants assert that to establish a Title II ADA claim, Plaintiff must show: (1) he is a qualified

individual with a disability; (2) he was excluded from participation in a public service or

program; and (3) the exclusion was due to his disability. Plaintiff satisfies all three elements,

based on undisputed evidence and Defendants’ own sworn admissions.

Plaintiff is a Qualified Individual with a Disability. Plaintiff’s disability is undisputed. Plaintiff

documented his disabilities during interactions with Defendants between 2023 and 2025,

including through uploaded materials and written references to his need for accommodation, and

again throughout this litigation. Defendants have never contested Plaintiff’s status as a qualified

individual with a disability within the meaning of Title II of the ADA (42 U.S.C. § 12131(2)).

Plaintiff Sought Access to a Public Service: Unemployment Benefits. Plaintiff applied for

unemployment benefits, a public program administered by the State of Colorado and subject to

the full protections of Title II of the ADA. Plaintiff also attempted to request ADA

accommodation and was completely blocked and obstructed from knowledge and instruction of

how to process or request this despite written submissions by FAX and uploaded through

documents in the Claimant portal, none of which got acknowledged or replied since there was no

official method or ability to reasonably navigate otherwise.

Defendants failed to comply with 28 C.F.R. § 35.106 by not informing claimants of their rights

under the ADA or providing instructions on how to request accommodations, thereby

compounding the systemic barriers and constituting an independent regulatory violation.

Defendants failed to designate or publicize the identity and contact information of an ADA
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 7
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Coordinator as required under 28 C.F.R. § 35.107(a), depriving Plaintiff and similarly situated

individuals of any meaningful avenue for addressing accommodation denials.

The Supreme Court previously ruled meaningful access to public services is required under the ADA.

Requiring disabled individuals to navigate inaccessible systems while providing nondisabled individuals

with intuitive digital access constitutes disparate impact discrimination, violating both the letter and spirit

of federal law. The Division’s lack of electronic or flexible accommodation procedures disproportionately

excludes disabled claimants—particularly those with communication, cognitive, or psychiatric

impairments—who are unable to reach live representatives or attend in-person appointments. This

disparate impact violates Title II’s requirement of meaningful access. See Alexander v. Choate, 469 U.S.

287 (1985).

Plaintiff Was Excluded From Meaningful Access Due to Disability-Based Barriers. Plaintiff was

functionally excluded from accessing critical services needed to resolve integrity holds, appeal

underpayment decisions, or request clarifications, as a direct consequence of systemic failures

affecting disabled claimants:

● No Electronic Accommodation Process Exists. Defendant Jeff Newcomb (Branch

Manager, Customer Services) admits in sworn testimony that accommodation requests

must be made directly to live call center agents or in-person staff. No standardized,

accessible electronic submission form or portal mechanism exists for disability

accommodations, despite the heavy reliance on the MyUI+ portal for all other critical

communications.

● Live Agent Access Required, But Impossible. Defendant David Kimball (Call Center

Operations Manager) admits that the call center lacks sufficient staffing or callback

capacity. With the system admitting only a tiny fraction of total daily claimants, disabled
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 8
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individuals who cannot access phone queues are denied even the possibility of requesting

accommodations.

● Excluded from any assistance with integrity matters, appeals, and various processes was

fully denied because neither the automated phone system nor live representatives

informed callers about the availability of disability accommodations, and no options for

accommodations were provided during appeals, integrity checks, or ID verifications.

● Uploaded Requests Are Not Recognized. Despite Plaintiff uploading disability-related

documents into the portal, Defendants affirm that uploads are not treated as

accommodation requests. Thus, disabled individuals cannot invoke their rights unless

they can already navigate an inaccessible system. This broken system is obvious and

predictably in perpetuating federal and constitutional harm at scale.

Defendants’ Motion fails to address, and thus concedes, that the Division’s unemployment

systems are fundamentally inaccessible to disabled claimants in violation of Title II of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132. Defendant Jeff Newcomb

admitted under oath that accommodation requests must be made verbally to live call center

agents or in-person staff, with no standardized electronic, portal-based, or accessible intake

process available. Given that MyUI+ and overloaded phone lines are the primary access points

for claimants, and that automated systems fail to inform or facilitate accommodation requests,

disabled individuals like Plaintiff are effectively barred from engaging with core unemployment

processes, including appeals, integrity reviews, and benefit verifications. This systemic failure

denies meaningful access as required under federal law. See Tennessee v. Lane, 541 U.S. 509

(2004).
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 9
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Plaintiff, a qualified individual with a recognized disability, was denied meaningful and timely

access to unemployment benefits and appeals not by explicit exclusion, but by structural barriers

that disproportionately burden disabled persons. No system prompts, no agent outreach, and no

public notices advised claimants how or where to seek accommodations, leaving access

contingent on navigating an inaccessible and broken call center. This lack of reasonable

modifications delayed and obstructed Plaintiff’s ability to resolve claims and challenges,

violating the ADA. The fact that Plaintiff eventually accessed partial benefits does not cure the

constitutional harm, which stems from systemic discrimination embedded in Defendants’

processes. Individual Responsibility for these systemic failures lies squarely with the following

individuals in their official capacities:

● Joe Barela, Executive Director, for failing to ensure constitutional and statutory
compliance at the highest level.
● Jeff Fitzgerald, Director of Unemployment Insurance, for failing to establish an
accessible accommodation request infrastructure.
● Jeff Newcomb, Branch Manager, for managing claimant communication processes that
exclude disabled individuals.
● David Kimball, Call Center Operations Manager, for knowingly operating an inaccessible
call system critical for requesting accommodations.
● Brandon McClure, Program Manager for MyUI+, for failing to integrate ADA-compliant
accommodation request mechanisms into the digital portal.

These officials knew or should have known that failing to provide accessible avenues for

accommodation violated Title II obligations. Their failure to act is not a mere technical

oversight. It is ongoing systemic discrimination in violation of federal law. The existence of

performance reports and public data show these issues were well known and prioritization of call

statistics and ‘money saved’ in denying claims as the primary focus with no plan or action to

address the known constitutional issues.
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 10
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Beyond standing alone as ADA violations, these failures also magnify the First and Fourteenth

Amendment violations already detailed. Disabled claimants are not merely inconvenience they

are wholly blocked from exercising their rights to petition the government and receive

procedural due process. The combination of inaccessible appeal systems and denial of

accommodation rights creates a multilayered constitutional deprivation that demands immediate

judicial correction. Plaintiff has not only plausibly stated but overwhelmingly substantiated

claims of ADA Title II violations, constitutional injury, and systemic administrative failure, each

sufficient to survive dismissal.

Relief Arising from Constitutional Violations

While Plaintiff’s Amended Complaint includes limited claims for monetary relief, such damages

stem directly from the proven constitutional violations committed by Defendants. Under 42

U.S.C. § 1983 and established precedent, monetary compensation is appropriate where a plaintiff

suffers tangible harm including financial, emotional, or physical injury flowing from unlawful

deprivations of constitutional rights. The Supreme Court has repeatedly affirmed that individuals

sued in their personal capacities for unconstitutional acts are not shielded by Eleventh

Amendment immunity. These claims are distinct from and fully compatible with Plaintiff’s

prospective injunctive claims against Defendants in their official capacities. Backpay is sought

only as equitable relief to redress continuing deprivation of statutory benefits, not as

retrospective damages, and monetary damages are pursued solely against individual

defendants in their personal capacities under 42 U.S.C. § 1983.

Plaintiff’s request for back pay is not a claim for retrospective damages but a form of

equitable relief necessary to remedy the ongoing constitutional and statutory deprivation of
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 11
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benefits. See Milliken v. Bradley, 433 U.S. 267 (1977). To the extent monetary relief is

sought, it is pursued only against individual Defendants in their personal capacities under

42 U.S.C. § 1983 not against the state or its agencies.

Plaintiff’s request for backpay relating to unpaid unemployment benefits particularly those

wrongfully delayed from 2023 constitutes a permissible form of injunctive relief, not

retrospective damages. Plaintiff seeks an administrative correction of unlawful agency conduct

that continues to inflict harm today by undermining his economic stability, housing security, and

ability to meet basic needs. The requested relief directly remedies the agency’s ongoing

violations and aims to restore Plaintiff to the position he would have occupied had Defendants

complied with constitutional and statutory requirements.

Even if the Court determines that Plaintiff’s supplemental state-law claims seeking separate

monetary damages must be severed or addressed later, the constitutional claims stand

independently. The Court retains full jurisdiction to order immediate injunctive relief to cure the

systemic due process and ADA violations detailed in the record. Judicial economy, fundamental

fairness, and the ongoing irreparable harm already suffered weigh strongly in favor of granting

the requested relief now, avoiding unnecessary future litigation and further compounding of the

damages already inflicted.

Exhaustion is excused because Defendant failed to issue an appealable decision rendering all

further remedies unavailable. Plaintiff has demonstrated extraordinary diligence in exhausting

administrative remedies, pursuing self-representation in federal court, and assembling a

comprehensive evidentiary record. These efforts further support the propriety of ordering full

relief including restoration of back pay and constitutional compliance at this stage to make
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 12
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Plaintiff whole and to vindicate the rights of similarly situated claimants suffering parallel harms.

Exhaustion is excused where no adequate or available administrative remedy exists. Here,

Defendants’ failure to issue a disqualification or appealable decision rendered further process

unavailable. See Ross v. Blake, 578 U.S. 632 (2016); McCarthy v. Madigan, 503 U.S. 140 (1992)

Defendants failed to issue any appealable decision regarding Plaintiff’s underpayment of benefits

in 2023. No written disqualification, denial, or determination was ever issued to trigger an

appeal, leaving Plaintiff in limbo with no notice, no explanation, and no opportunity to contest

the deprivation of his benefits.

Defendants failed to issue any disqualification or appealable decision following Plaintiff’s

second integrity hold in 2023. Defendants’ own exhibits confirm that a fact-finding request was

sent, but no required disqualification notice followed after seven days, in direct violation of their

own procedures. Without a formal adverse decision, Plaintiff was deprived of any opportunity to

appeal or seek timely review.

When Plaintiff attempted to engage the appeals process, he was funneled into filing an irrelevant

appeal regarding “withdrawal of application”, something he clearly did not seek. Plaintiff’s

appeal materials stated he was trying to address underpayment issues, but the magistrate

confined the proceeding solely to the withdrawal matter, making any further appeal futile and

irrelevant to the actual harm suffered.

The lack of appealable decisions and the obstruction of meaningful appeal pathways prevented

Plaintiff from exhausting administrative remedies through no fault of his own. This systematic

deprivation of notice and access constitutes a violation of the First and Fourteenth Amendments,

fully excusing any alleged failure to exhaust.
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 13
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The constitutional violations here are specific, ongoing, and structural and systemic in scale. The

First Amendment right to petition the government for redress has been systematically obstructed.

Claimants are deprived of any meaningful avenue to appeal wrongful benefit denials because

Defendants failed to issue timely appealable determinations, failed to maintain functional

communication systems, and failed to provide accessible channels for grievances. These

practices effectively foreclose claimants’ ability to seek redress for violations..

Defendants have violated the Fourteenth Amendment’s procedural due process guarantees by

withholding public benefits without providing adequate notice, an opportunity to respond, or a

meaningful hearing. Integrity holds are imposed without individualized suspicion, notice of

disqualification, or any functional means to challenge the deprivation. Furthermore, Defendants

violate the Equal Protection Clause by failing to provide disabled claimants with accessible

methods to request accommodations, navigate appeals, or resolve benefit disputes, in violation of

Title II of the Americans with Disabilities Act. These failures are not isolated mistakes but

systemic practices that continue to deprive Plaintiff and similarly situated individuals of their

constitutional and statutory rights.

In Conclusion : Defendants’ Motion to Dismiss must be denied. Plaintiff has properly named

and sued Defendants in their official capacities under well-established exceptions to sovereign

immunity, specifically seeking prospective injunctive relief for ongoing constitutional and

statutory violations. The record clearly demonstrates that the systemic deficiencies in

Defendants’ administration of unemployment benefits including failure to issue appealable

decisions, denial of access to appeals, obstruction of disability accommodations, and deprivation

of notice and hearing violate the First and Fourteenth Amendments, Title II of the ADA, and

federal statutory mandates.
Case No. 1:24-cv-03390-RMR Document 36 filed 05/09/25 USDC Colorado pg 14
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Defendants’ reliance on broad immunity defenses, theoretical exhaustion doctrines, and

references to abstract administrative frameworks fails to address the uncontested reality that

Plaintiff and similarly situated individuals have been unlawfully denied access to critical benefits

without meaningful process. Defendants’ arguments do not rebut the fundamental constitutional

claims already proven on the face of the pleadings and exhibits.

Discovery is warranted to further establish the systemic nature of these violations, but even now,

the existing evidentiary record already substantiates the Plaintiff’s claims to a degree that could

support summary judgment. Continuing to delay adjudication based on facially deficient

defenses would only perpetuate the very harms Plaintiff seeks to remedy. Immediate denial of the

Motion to Dismiss is necessary to advance this case toward resolution and ensure that

constitutional rights are no longer sacrificed under the pretense of administrative convenience.

________________________________________

Date: 05-08-2025 | ❑Petitioner/Plaintiff

Joshua Abrams, Pro Se

CERTIFICATE OF SERVICE

I certify that on 05-08-2025 a true and accurate copy of the Defendant was served on the other
party by:
X_E-filed, lauren.davison@coag.gov & Stephen.woolsey@coag.gov

__________________________________________

❑Petitioner/Plaintiff

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Opposition to dismissal Unemployment

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