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Carly Boudreau v. Bethesda Foundation of Nebraska

United States District Court, D. Colorado

January 27, 2016




This case involves claims that Defendant Bethesda Foundation of Nebraska violated Plaintiff's rights under the Americans with Disabilities Act ("ADA") and the Colorado Americans with Disabilities Act ("CADA"). This matter is before the Court on Defendant's Motion for Summary Judgment. (Doc. # 29.)


Defendant is a faith-based, non-profit organization operating facilities in the senior living industry. Defendant owns and operates sixteen senior living and senior care communities in six states, including Colorado. ViewPointe Senior Living Community ("ViewPointe"), a facility in Colorado Springs, is owned and operated by Bethesda Senior Living Communities ("BSLC"), a division of Defendant.

In May of 2013, Plaintiff was hired for a housekeeping position at ViewPointe. (Doc. # 29 at 2.) On May 30, 2013, Plaintiff received and read ViewPointe's Employee Manual, which included an ADAA Accommodation provision: "[Defendant] will make reasonable accommodation for qualified individuals with known disabilities unless in doing so would result in an undue hardship to the company. Employees needing such accommodation are instructed to contact their supervisor or Executive Director of Resources immediately." (Docs. ## 29-7 at 3; 29-5 at 45-6.) At the time of Plaintiff's employment, the housekeeping supervisor was Al Austin and the Executive Director was Elizabeth Henricks. (Doc. # 29 at 3.)

On Plaintiff's first day of work, May 31, 2013, Mr. Austin assigned Plaintiff to work with Terri Montague, ViewPointe's most tenured lead housekeeper, for training. ( Id. at 3-4.) On Plaintiff's second and last day of work, June 3, 2013, Plaintiff was again assigned to work with Ms. Montague and worked two to four hours. ( Id. at 4.) At some point during the morning of June 3, 2013, Plaintiff left Ms. Montague's presence and did not return. ( Id. )

Plaintiff attempted to "get ahold of [Mr. Austin] at the front desk, " but Mr. Austin was unavailable, thus, she left her walkie-talkie and housekeeper keys with a secretary and left the premises.[1] ( Id. at 5.) Around 10:00 a.m. the same day, Mr. Austin was alerted to Plaintiff's departure and called Plaintiff to find out what happened. ( Id. ) Plaintiff's mother answered the phone and spoke to Mr. Austin for approximately ten minutes. ( Id. ) In describing the phone call, Plaintiff's mother stated:

He identified himself as Al, I identified myself for who I was, and I explained that I was taking the call for Carly because she was too upset to handle the call herself. I explained to Al what had happened, that-I started off by explaining Carly's need for Teri to take the time to explain to Carly how she was cleaning the rooms, and I explained that, because of the way that Teri was training Carly, the way that she was training Carly without using enough descriptors and without working slowly enough for Carly to be able to see what was being done, that Carly needed more interaction that was of the helpful variety rather than telling her not to have sex with residents.
So I explained to Al that Carly was something like high-functioning autistic and that Carly had explained that with her stress level as it went up, that her tics increased, and the way that Teri was interacting with her was not helpful. So Al indicated-he used words that Teri was gruff and he could see how what happened could have happened.

(Doc. # 29-12 at 105:4-16.) When asked what accommodation she asked Mr. Austin for, Plaintiff's mother stated:

A. I explained that Carly needed interaction that was helpful for training her and she needed respectful interaction that didn't berate her for her disability.
Q. Is that it? Anything else?
A. Yeah, that was pretty much it. I mean, she had six weeks to train. So being slow was really not a big deal. You would expect a new hire to be slow. She expected herself to be slower than Teri. So I didn't say, Oh, she needs twice the time to clean this room. I didn't say anything like that, because, really, the accommodation she needed was just general decency from another person to train her with words that were helpful, like, Use this cleaner for this job, or to help her level set to say, Okay, this is clean enough. That's not a huge accommodation.

( Id. at 109:10-24.) Plaintiff's mother described Plaintiff's interaction with Ms. Montague as "an interactive problem with the way that Teri was behaving toward Carly because of Carly's disability." ( Id. at 110:8-14.) When asked to relay how Mr. Austin responded, Plaintiff's mother stated:

A. He told me to tell Carly to, sit tight - those were his words - sit tight until I get back on Friday. He did not tell me where he was going or why he was going, just that he was boarding a plane, and I could hear the sounds of the gate.
Q. What else did he say?
A. Sit tight until I get back, we'll resolve it.

( Id. at 106:4-10.) Plaintiff never personally made a complaint of any kind directly to Mr. Austin or Ms. Henricks. (Doc. # 29-5 at 112:11-113:12.)

After the telephone call between Mr. Austin and Plaintiff's mother, Plaintiff never returned to ViewPointe. (Doc. ## 1 at 7, 29 at 7.) Defendant claims Plaintiff's early departure was interpreted as abandonment or self-termination. (Doc. ## 29-2 at 53:3-5, 29-3 at 32:13-15) Plaintiff asserts that she was following Mr. Austin's instruction to "sit tight" until his return, and did not believe that she quit her job when she left work early. (Doc. ## 1 at. 7, 29-5 at 129:19-22.)

Plaintiff claims that she called Mr. Austin on Friday, June 7, 2013, the day he indicated he would return to work. (Doc. # 1 at 8.) She intended to discuss "her work situation and next steps." ( Id. ) Plaintiff further claims that Mr. Austin answered her call, and immediately informed ...

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