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Pelkey v. Colorado Department of Labor and Employment

United States District Court, District of Colorado

April 14, 2015



R. Brooke Jackson United States District Judge

This matter comes before the Court on Defendant’s Partial Motion to Dismiss Plaintiff’s First Amended Complaint [ECF No. 21]. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons the motion is granted in part and denied in part.


This case concerns the allegedly discriminatory treatment suffered by the plaintiff, Ms. Pelkey, at the hands of her employer, the Colorado Department of Labor and Employment (the “CDLE”). For purposes of this motion the Court assumes the truth of the well-pled allegations set forth in the First Amended Complaint [ECF No. 17].

On or about July 30, 2012, Ms. Pelkey began her employment with the defendant, the CDLE, in the Division of Unemployment Compensation/Insurance Customer Service Call Center. Less than two months later, Ms. Pelkey was promoted to the position of Program Assistant II in the CDLE’s Division of Workers’ Compensation Medical Policy Unit.

In late November 2012, Ms. Pelkey underwent a breast biopsy. A few days later, on November 30, 2012, she discovered that she had breast cancer. She informed her supervisor, Christy Hunter, of the diagnosis on the same day.

According to Ms. Pelkey, beginning in December 2012 Ms. Hunter began giving Ms. Pelkey assignments and tasks that were not properly within her job description, failed to provide Ms. Pelkey with her 90-day performance evaluation, and interfered with Ms. Pelkey’s job duties. Ms. Hunter also failed to respond to IT problems that Ms. Pelkey notified her about. As a result, Ms. Pelkey had to spend considerable time with the Office of Information Technology to accomplish her tasks, but Ms. Hunter rated her technology as 0% in her Employee Quality and Excellence Plan.

On or about December 12, 2012, Ms. Pelkey informed Ms. Hunter that she would be requesting FMLA leave for breast cancer surgery. Ms. Hunter responded that she did not believe that Ms. Pelkey was eligible for FMLA leave. However, the next day, the CDLE FMLA Coordinator, Karen Herrera, informed Ms. Pelkey that she would be eligible for FMLA leave on January 1, 2013.[1]

On or about December 17, 2012, Ms. Pelkey informed Ms. Hunter that she would need to be out of the office for medical appointments related to her breast cancer diagnosis on December 17, 18, and 19, for a total of roughly three hours. Approximately an hour later someone called Ms. Pelkey’s insurer and cancelled her doctor’s appointment for December 18, 2012. In addition, someone changed the daytime contact numbers that Ms. Pelkey had on file with her insurer. Ms. Pelkey discovered this change after her general surgeon left a voicemail on her home answering machine advising her of the inaccurate phone numbers. Ms. Pelkey contends that this act made it impossible for her surgeons to contact her during daytime hours and caused a delay in her treatment.

Ms. Pelkey adds that on that same day – December 17, 2012 – Ms. Hunter and Paul Tauriello, the head of the Medical Policy Unit, informed HR that they wanted to terminate Ms. Pelkey’s employment. Ten days later, on December 27, 2012, Mr. Tauriello requested that Ms. Pelkey take part in a meeting with him, Ms. Hunter, and Dan Sung, a manager in the Medical Policy Unit. Ms. Pelkey alleges that she was harassed, intimidated, falsely accused of dereliction of duty, verbally attacked, and bullied during this meeting. Ms. Pelkey contacted HR to complain about the harassment, but nothing was done.

Mr. Tauriello, Ms. Hunter, and Mr. Sung asked Ms. Pelkey to take part in another meeting on December 31, 2012 to discuss job expectations. The day before the meeting, Ms. Pelkey explained to the three of them that she was suffering from a disability under the Americans with Disabilities Act (“ADA”) and stated that she was seeking an accommodation. She asked that the meeting scheduled for the next day address her request. That same day Ms. Pelkey retained the services of an attorney to counsel her with respect to the difficulties she was facing with the CDLE. At some point, Ms. Hunter told Ms. Pelkey that “[e]verything would have worked out just fine had you not gotten your attorney.” First Amended Complaint ¶ 29.

The December 31, 2012 meeting did not address Ms. Pelkey’s accommodation needs. Instead, Ms. Hunter and Mr. Sung advised Ms. Pelkey that she would be undergoing an immediate evaluation of her job performance. They also informed her that she was responsible for administrative support for the Project Data Management Unit even though this function was not in her job description.

On January 2, 2013, Ms. Pelkey emailed Mr. Tauriello, Ms. Hunter, and Mr. Sung, among others, asking when the interactive discussion regarding accommodations would occur. That same day another meeting was held to discuss supposed problems with Ms. Pelkey’s job performance. In response, Ms. Pelkey notified Ms. Hunter and other management employees that she felt she was being discriminated and retaliated against as a result of her medical condition.

During the week of January 7, 2013, according to Ms. Pelkey, Ms. Hunter continued to interfere with Ms. Pelkey’s job performance. She also began eavesdropping on personal phone calls between Ms. Pelkey and healthcare providers. On January 11, 2013, Ms. Pelkey was called into a meeting with the Director of the CDLE and an HR representative. Ms. Pelkey ...

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