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Jacobson v. Adams 12 Five Star Schools

United States District Court, D. Colorado

March 31, 2014



WILEY Y. DANIEL, Senior Judge.


This matter is before the Court on Defendant Adams 12 Five Star Schools ["School District"] Motion for Summary Judgment, which is fully briefed. The School District seeks summary judgment on Plaintiff's claims that it discriminated against her in violation of the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. ["ADA"] as retaliation for her filing a complaint of disability discrimination with the Equal Employment Opportunity Commission ["EEOC"] in January 2010. (Compl. ¶ 3.)

The School District argues that Plaintiff cannot adduce sufficient evidence to establish a prima facie case of retaliation or establish that its legitimate nondiscriminatory reasons for the actions it took were a pretext for discrimination. Further, it argues that the undisputed facts establish that the School District has not taken an employment action against Plaintiff based on any impermissible motive. Finally, the School District argues that if summary judgment is denied on the merits of the claims, Plaintiff's claims for compensatory and punitive damages must be denied because such damages may not be awarded. Plaintiff argues generally in response that the parties present two radically different versions of the events at issue and that this establishes that material issues of fact remain to be determined.


The parties have cited voluminous facts. I have cited only those facts I deem most relevant, but have considered all the facts and evidence supporting them. I will cite to the evidence only where there is a genuine dispute about the fact(s).

I note that Plaintiff responded to 129 of the School District's 138 paragraphs of undisputed facts with "Admitted", "Admitted but misleading; material facts are omitted" or "Denied because misleading; material facts are omitted". To the extent Plaintiff asserted that material facts were omitted, she did not state what those were in her response to the School District's facts. To the extent she sought to deny facts, she failed to provide a factual explanation of the reason(s) for the denial and a specific reference to material in the record supporting the denial as required by Section III.B.4 and 5 of my Practice Standards as well as Fed.R.Civ.P. 56(c). These facts must thus be deemed admitted as there is no record evidence that supports the denial.

Further, Plaintiff cited 76 additional paragraphs of facts, in many instances citing only to her affidavit or that of her husband. In evaluating these affidavits, I have kept in mind that "[t]o survive summary judgment, nonmovant's affidavits must be based upon personal knowledge and set forth facts that would be admissible in evidence; conclusory and self-serving affidavits are not sufficient.'" Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1244 (10th Cir. 2010) (quotation omitted). Eleven of Plaintiff's cited paragraphs fail to cite material in the record to support the allegations, and are thus unsupported. I now turn to the facts.

The Parties

The School District is a governmental entity that operates public schools in Adams County, Colorado. It employed Plaintiff as an English as a Second Language ("ESL") teacher from August 28, 2008 through August 2011.

Plaintiff's post-graduate degrees include an MA in teaching and a Ph.D. in Educational Administration. Her area of specialization for her doctorate was second language acquisition. She holds a Colorado Professional Teacher's license and, at the time at issue, held a Colorado Professional Principal's license. She wanted to be a classroom teacher because she prefers to work directly with students.[1]

From August 2008 through August 2010, Plaintiff was an ESL teacher at Malley Elementary School ("Malley"). From August 2010 to August 2011, Plaintiff was an ESL teacher at Silver Hills Middle School ("Silver Hills").

Plaintiff's Employment at Malley Elementary School

During Plaintiff's first year of employment by the School District at Malley, Principal Anne Wesley ("Wesley") was aware that Plaintiff suffered from chronic pain which affected her normal activities. Wesley permitted various accommodations, such as allowing Plaintiff to come in on weekends to perform planning activities and to arrive late on some mornings due to physical therapy. Before commencement of the 2009-2010 school year, Plaintiff discussed schedule accommodations with Wesley, and they agreed upon a number of accommodations.

Shortly after the commencement of the 2009-2010 school year, Plaintiff learned that her hip prosthesis would have to be replaced, and that the surgery could not be delayed until a break in the school year. The surgery was performed in late September of 2009. (Resp. and Obj. to Mot. Summ. J. ["Resp."], Ex. 1.) Plaintiff took leave from September 28, 2009, through December 18, 2009.

In late 2009, Plaintiff learned of two job postings within the district for Teacher on Special Assignment ("TOSA") positions with the Language Acquisition Support Services Department, for which she was qualified and had experience. She applied for both positions. Plaintiff was interviewed for one of the TOSA positions by telephone, and received a telephone message from Julie Dutch, Director of the Department, stating she would be interviewed for the other position after her return from a pain clinic.

After her return to work, Plaintiff discussed with Wesley the new physical therapy recommendations developed at that pain clinic. These recommendations involved an uninterrupted morning "break" period of 45 minutes to allow for physical therapy.

Plaintiff asserts that Wesley refused the requested accommodation, and the School District and Plaintiff commenced a series of discussions as to other options for accommodation. (Resp., Ex. 1.) Plaintiff also asserts that the School District refused to agree to any scheduling accommodation within Malley, and offered no acceptable position for transfer. Plaintiff contends that she requested transfer to the still-open TOSA position for which she had applied and for which she had been promised an interview. In response, the School District denies that it refused to provided accommodations within Malley, citing to Exhibit A1 of the Response wherein it offered Plaintiff certain options providing accommodation. As to the TOSA position, it is undisputed that Plaintiff applied for the TOSA position in 2009, that Plaintiff was not selected for the position, and that it remained open as of January 10, 2010. ( See Resp., Ex. 4.) While Plaintiff asserts that the School District acknowledged that she was qualified for the position but refused to grant her the transfer, claiming that Plaintiff was not the "ideal" candidate, the exhibit she cites does not support this assertion. ( Id. )

Plaintiff's First EEOC Charge and the Settlement Agreement

In January 2010, Plaintiff filed a Charge of Discrimination ("2010 Charge") with the United States Equal Employment Opportunity Commission ("EEOC") seeking to enforce rights pursuant to the ADA. This was filed due to the School District's alleged refusal to provide accommodation.

Plaintiff asserts that rather than provide accommodation, the School District placed her on medical leave for the remainder of the school year, citing her affidavit, Exhibit 1 to the Response. Her affidavit is contradicted by Exhibit MM to the Reply, which shows that Plaintiff requested leave, as her doctor "recommended continuing leave through the end of this school year." ( Id. ) Plaintiff's request for a leave of absence was granted. ( Id. )

In July 2010, the School District offered Plaintiff a position at Silver Hills as an ESL teacher. In reliance upon the School District's representation as to teacher planning periods being an integral part of teacher scheduling, Plaintiff agreed to give up seniority rights and medical leave privileges in exchange for the transfer to Silver Hills for the 2010-2011 school year. In the summer of 2010, Plaintiff underwent a surgical procedure to repair her right shoulder.

The parties ultimately entered into a written settlement agreement to resolve the matters raised by the 2010 Charge. The agreement included dismissal of the pending EEOC charges.

In the settlement agreement, the parties agreed Plaintiff would be employed as an ESL teacher at Silver Hills starting in August 2010. The School District did not provide any information related to Plaintiff's 2010 Charge or the terms of the Settlement Agreement to Plaintiff's new supervisors at Silver Hills: Principal Jami Miller ("Miller") and Assistant Principal Tim Griffin ("Griffin"), or to the Director of Language Acquisition, Julie Dutch ("Dutch").

Mark Hinson ("Hinson") testified that Silver Hills is one of the School District's newest middle schools. He also testified that it was a "great place to work, good culture and climate in terms of leadership...." (Mot. Summ. J. ["Mot.], Ex. B at 16:21-17:6.) Plaintiff denies this, citing to Miller's testimony that Silver Hills was not in a real stable state and that he was sent in as principal to "stabilize the school and get it kind of back on its feet and rolling." (Resp., Ex. 3 at 8:1-12.) This does not, however, refute Hinson's testimony that Silver Hills was a good place to work or that it was a good culture and climate under the leadership of Miller. It is undisputed that during the 2009-2010 school year, Miller was able to establish a team atmosphere and get the faculty and administration of Silver Hills working together.

The August 2010 Meeting and Plaintiff's Duties at Silver Hills

In August 2010, Plaintiff met with Silver Hills Principal Miller. She stated in her affidavit that she told him of her condition, of the circumstances of the transfer, and of the agreement with the School District regarding her having planning periods as an accommodation. (Resp., Ex. 1 ¶ 31.) While she also asserts that she told Miller about the EEOC proceedings and the settlement, her affidavit does not reference that. Miller testified that she told him there was a nonrenewal at her previous school, "there had been some settlement or arbitration or something" which led to her coming to Silver Hills, and that "there were some things set up within that needed to be met", including the "planning period situation". (Def.'s Reply in Supp. of Mot. Summ. J. ["Reply"], Ex. LL at 21:2-8.) However, he stated in his affidavit that he had not been informed of the circumstances leading to Plaintiff's placement at Silver Hills. (Mot., Ex. C.) He was only aware that Plaintiff was out for some time during the prior year and that mediation took place. ( Id. ) There is thus no evidence that Miller knew about the EEOC charge.

Plaintiff asserts that she requested accommodation regarding planning periods at the August 2010 meeting and Miller denied it, stating that there were no exceptions to the school's rule that all teachers were required to perform "duties" beyond their classroom teaching schedules. This included providing supervision for students at lunchtime. The School District denies that the accommodation was requested, promised, or denied in August 2010. Instead, Miller testified that upon showing her the schedule, Plaintiff thought the schedule would be fine and that the situation could be worked out. (Reply, Ex. LL at 21:8-11.) Plaintiff's schedule for the first semester of the 2010-2011 school year provided for two planning periods back-to-back with lunch.

When Miller posted a sign-up sheet for Silver Hills' teachers to indicate what non-classroom duties they preferred, Plaintiff signed up and got her first choice: lunch supervision duty. Plaintiff asserts that because she had been denied the promised accommodation, she chose the only duty that would allow her to attend physical therapy before and after school. (Resp., Ex. 1.)

Plaintiff arrived late to lunch duty at least three times. Griffin and the assistant principal held a pre-disciplinary meeting with Plaintiff because they were concerned she had failed to show up on time for lunch duties. Plaintiff did not receive discipline or a warning about being late. While Plaintiff asserts that she spoke with a teacher's union representative about this issue (Resp., Ex. 1 ¶ 42), the statements allegedly made by the representative are hearsay and are thus inadmissible. As a result of the conversation, Plaintiff asserts that she began keeping her own "anecdotal record" of events at the school, beginning September 22, 2010. ( Id. )[2]

Plaintiff's Allegations about Note Taking

Plaintiff alleges in her affidavit that she has reviewed notes written by Griffin and Miller which "have no relation to my classroom performance, and are not the normal records kept by administrators to track teacher performance." (Resp., Ex. 1 ¶ 43.) She further asserts that "[s]uch records are only created and used to build a case for dismissing a teacher" and "[t]hey establish that Adams 12 planned to terminate my employment from the beginning of my assignment, no matter what I did in the classroom." ( Id. ) Defendant denies these allegations. While I accept Plaintiff's representation that she reviewed notes of Miller and Griffin, she did not attach a copy of the notes or even state what the notes said. Instead, she makes unsupported and speculative arguments about the meaning and purpose of the notes. Without a representation about what the notes actually said, however, I cannot accept Plaintiff's arguments. Further, she has no personal knowledge about the purpose of any notes made by Miller and Griffin. Thus, I reject the bulk of Plaintiff's allegations in this paragraph.

Standards for Performance Appraisals

Plaintiff's employment at Silver Hills was her second year as a probationary teacher in the School District. Colorado law provides: "During the first three school years that a teacher is employed on a full-time continuous basis by a school district, such teacher shall be considered to be a probationary teacher whose employment contract may be subject to nonrenewal, C.R.S. § 22-63-203(2)(a).

The Personnel Appraisal System is described in Article 14 of the Master Agreement for School Year 2009-2010 between the School District and the union representing teachers in that district. Probationary teachers are to be evaluated twice yearly in accordance with the Personnel Appraisal System. Second year probationary teachers shall have a minimum of two observations for their first evaluation cycle and a minimum of one observation during their second evaluation cycle. Observations and evaluations of teachers are the responsibility of administrators, who shall rate the teacher as "Satisfactory, " "Satisfactory with Growth Needed", or "Unsatisfactory." A "Satisfactory with Growth Needed" rating requires development of a written improvement plan.

The Licensed/Certified Performance Appraisal System for the School District incorporates Article 14 and outlines the following steps for evaluating a teacher's performance: (a) at the beginning of the school year, a classroom teacher and her administrator/evaluator jointly prepare a "Pre-Appraisal Agreement" in which they agree on standard(s) and criteria to be the focus of the appraisal, specific objective(s) and strategies for achieving the objective(s); (b) administrators observe teachers in their classrooms formally (scheduled in advance) or informally (at any time); (c) if the observation is formal, or if the observation is informal and to be used as part of the evaluation, the administrator prepares a record ("Data Collection Conference Report") and discusses it with the teacher; (d) the evaluations are documented as a "Performance Appraisal Summary" that includes an overall rating and a narrative; and (e) if a teacher receives an overall rating of "Satisfactory with Growth Needed" on a Performance Appraisal Summary, a written "Improvement Plan" must be developed by the teacher and administrator.

Plaintiff's 2010-2011 Pre-Appraisal Agreement

Griffin was responsible for conducting Plaintiff's evaluations for the 2010-2011 school year. Plaintiff and Griffin met on September 16, 2010 to prepare Plaintiff's Pre-Appraisal Agreement for the 2010-2011 school year. They agreed upon and reduced to writing one stated objective or goal for the Agreement: "use[ ] a variety of teaching methods appropriate to diverse learners and the environment." They listed specific strategies to achieve that goal, including: "Will familiarize herself with the Inside curriculum series for middle school students, " "Will meet with Karen Caddoo to discuss planning curriculum and resources, " and "Will network with other ESL teachers for input on technology." Thus, one of the strategies was working with Karen Caddoo ("Caddoo"), the LASS coordinator assigned to Silver Hills.

Training and IT support provided by the School District

The School District prepared a list of "Support Offered" at the end of September to document the training, help sessions and individual assistance and support it had provided to Plaintiff between August 16 and September 16, 2010. It provided the support described in the list to Plaintiff

In addition, Caddoo held a planning meeting with Plaintiff in September 2010. When Plaintiff had computer issues other than the log-in issues, ...

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