United States District Court, D. Colorado
LEWIS T. BABCOCK, District Judge.
This matter is before me on Defendant Terumo BCT, Inc.'s ("Terumo") Motion to Dismiss Second and Third Claims for Relief [Doc. # 11]. Plaintiff Jeanea Lucero, a former Terumo employee, brings claims against Terumo under the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), the Colorado Anti-Discrimination Act, Colo. Rev. Stat. § 24-34-401, et seq. ("CADA"), and Colorado common law. I have reviewed the parties' submissions. Oral argument would not materially assist me in deciding the motion. I have jurisdiction under 28 U.S.C. §§ 1331 and 1367.
As I explain below, I GRANT IN PART AND DENY IN PART the motion. I reject Terumo's argument that the Court lacks subject matter jurisdiction over Ms. Lucero's claim for failure to provide reasonable accommodations because Ms. Lucero did not exhaust her administrative remedies as to that claim. I agree with Terumo that no claim for "failure to engage in interactive process" exists under the ADA or the CADA. I also agree that Ms. Lucero has not adequately pleaded her common law claim for negligent hiring, retention, and supervision. I therefore dismiss those two claims for failure to state a claim upon which relief can be granted.
The following facts are drawn from allegations in Ms. Lucero's complaint unless otherwise indicated. Ms. Lucero lives in Denver, Colorado. Compl. ¶ 3 [Doc. # 1]. Terumo is a corporation that has its "principal address" in Lakewood, Colorado. Id. ¶ 5. Ms. Lucero began working for Terumo in May 2004 as an "assembler, " and worked there until she was terminated in August 2013. Id. ¶¶ 7, 32. She indicated in the intake questionnaire she filed with the U.S. Equal Employment Opportunity Commission ("EEOC") that she was still an assembler at the time of the alleged discrimination. Ex. 3 to Resp. at 1 [Doc. # 16-3]. Neither party has indicated that she held any other title during her roughly nine year tenure at the company.
In July 2009, Ms. Lucero was experiencing back pain, which doctors determined was caused by a problem with her sciatic nerve. Compl. ¶ 9 [Doc. # 1]. They prescribed physical therapy, which allowed her to "work normally." Id. In May 2013, Terumo moved Ms. Lucero to a "similar position" in which she apparently remained an assembler but was required to "stand a significant majority of the day." Id. ¶ 10. The prolonged standing led Ms. Lucero to experience severe back pain and, ultimately, episodes of paralysis at night. Id. ¶¶ 11-12. The next month, she was diagnosed with spinal stenosis. Id. ¶ 13. Her doctor imposed work restrictions precluding her from working more than four hours a day, precluding her from standing for more than one of those four hours, and requiring her to take a five minute break each hour Id. ¶ 14; Ex. 3 to Pl.'s Resp. at 5 [Doc. # 16-3].
Ms. Lucero alleges that on various occasions in July 2013 she attempted to persuade Terumo to allow her to "move back to her previous open sitting position, " asserting that doing so would "resolve many issues" she had with the standing position. Compl. ¶ 21 [Doc. # 1]. A supervisor eventually allowed Ms. Lucero to "work in a sitting position to label bags." Id. ¶ 23. Within five minutes of starting this position, however, Ms. Lucero was summoned by human resources personnel, who indicated that "the work restrictions given by [Ms. Lucero's] [d]octor would not be approved." Id. ¶¶ 23-26. Ms. Lucero says that she "pleaded with them to let her do the sit down position that was already open, " but "they did not listen, threaten[ed] termination and coerced [Ms. Lucero] to fill out [a request for] Short Term Disability." Id. ¶ 26. The company "sent her home, " indicated that it would not allow her to work with the restrictions imposed by her doctor, and indicated that a doctor would need to "release her to work fully" before she could return to work. Id. ¶¶ 27-30. It appears Terumo allowed Ms. Lucero at least some leave under the Family Medical Leave Act ("FMLA"), although she alleges that Terumo was obstructive in handling her FMLA request. Id. ¶¶ 14-20, 29.
On July 24, 2013, Ms. Lucero filed her intake questionnaire with the EEOC. Ex. 3 to Resp. [Doc. # 16-3]. She claimed that Terumo discriminated against her based on her disability, which she identified as spinal stenosis. Id. at 1-3. She wrote that Terumo "would not comply with [her doctor's] [w]ork restrictions and [r]educed work hours" and that she felt her "job [was] being threatened if [she didn't] get better by the time they want[ed] [her] to." Id. at 2. She described how, when she asked for accommodation of these restrictions, Terumo "sent [her] home on full FMLA" and told her "to apply for short-term disability, " but not before allowing her to work for five minutes at "a sitting station to label some bags." Id. at 3, 5.
On August 15, 2013, after Ms. Lucero had exhausted her FMLA leave, Terumo terminated her employment. Compl. ¶¶ 29, 32 [Doc. # 1]. On January 21, 2014, Ms. Lucero filed a joint charge of discrimination with the EEOC and the Colorado Civil Rights Division ("CCRD"). Ex. 1 to Resp. [Doc. # 16-1]. She reiterated many of the facts she provided in her intake questionnaire, including that she asked Terumo multiple times to accommodate her work restrictions, but they "denied or ignored [her] requests" and ultimately terminated her. Id. at 1. On August 14, 2014, the CCRD issued Ms. Lucero a "notice of right to sue" letter. Ex. A to Compl. [Doc. # 1-1]. On September 29, 2014, the EEOC issued its notice of right to sue letter. Ex. B. to Compl. [Doc. # 1-2].
On November 12, 2014, Ms. Lucero filed this lawsuit. Her complaint contains three counts. The first count, which Terumo does not attack, alleges disability discrimination in violation of the ADA and/or the CADA; Ms. Lucero alleges that Terumo "refused to continue to [employ] Plaintiff because of her disability." Compl. at 8-10 [Doc. # 1]. The second count alleges failure to provide reasonable accommodations in violation of the ADA and/or the CADA. Id. at 10-11. The parties also agree that this count purports to assert a claim for "failure to engage in interactive process, " referring to the process by which employers determine reasonable accommodations for certain disabled employees under the ADA and the CADA. Id.; see infra § II.B (describing the interactive process). The third count alleges common law negligent hiring, retention, and supervision. Compl. at 11 [Doc. # 1]. Terumo filed the instant motion on January 6, 2015.
A. Exhaustion of Administrative Remedies as to Failure to Accommodate Claim
Terumo argues that Ms. Lucero did not raise the basis of her failure to accommodate claim in the charge of discrimination she filed with the CCRD and the EEOC and, therefore, that she has not exhausted administrative remedies as to that claim. It appears that Ms. Lucero worked at all relevant times as an assembler at Terumo, sometimes in a "sitting" position and sometimes in a "standing" position. Terumo has not asserted otherwise. In her complaint, Ms. Lucero bases her failure to accommodate claim on her requested "move back to her previous open sitting position" from a standing position to which she had been transferred by the time her doctor imposed restrictions on her ability to stand. Compl. ¶¶ 21, 26 [Doc. # 1]. She alleges this accommodation "would have worked and would have been reasonable" in view of those restrictions. Id. ¶¶ 26, 33. She claims that she told Terumo's FMLA administrator that she "could do the sit down positions, " that she had "worked at [them] for years, " and that "they were within her restrictions." Id. ¶ 28. She adds that, while her supervisor "would periodically put [her] in sitting positions, and [she] could then work the whole day, " her supervisor conveyed that she "would never be able to have [her] there permanently." Id. ¶ 21.
A court may dismiss a claim for "lack of subject-matter jurisdiction." Fed.R.Civ.P. 12(b)(1). A plaintiff's failure to exhaust administrative remedies precludes a court from having subject matter jurisdiction over claims brought under both the ADA, Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007), and the CADA, City of Colo. Spgs. v. Conners, 993 P.2d 1167, 1169 n.3 (Colo. 2000). An ADA "claim in federal court is generally limited by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination submitted to the EEOC." Jones, 502 F.3d at 1186 (citation omitted). Courts "liberally construe charges filed with the EEOC in determining whether administrative remedies have been exhausted as to a particular claim." Id. A CADA claim likewise must be "based on the alleged discriminatory or unfair practice that was the subject of the charge filed with the [CCRD]." Colo. Rev. Stat. § 24-34-306. Neither the parties nor I have identified any material way in which the ADA and CADA standards differ. See Lee v. ...