United States District Court, D. Colorado
R. Brooke Jackson United States District Judge
This matter is before the Court on defendant’s Motion to Dismiss, ECF No 18. For the reasons discussed below, the motion is denied.
Plaintiff Roberta Chavez is a 58-year-old resident of Westminster, Colorado. ECF No. 17 ¶ at 4. In 1997 Ms. Chavez started working for defendant Adams County School District No. 50 (the District) as an Instructional Educational Support Professional (ESP) at the District’s Early Childhood Center in Gregory Hill Elementary School (ECC). Id. at ¶ 14. As an ESP Ms. Chavez assisted preschool teachers with instructing classes of three- and four-year-old children. Id. at ¶¶ 14, 16.
Ms. Chavez alleges that multiple coworkers and supervisors discriminated against her because of her age and disabilities while she was working for the District. At all times relevant to this case Ms. Chavez weighed between 290 and 320 pounds and suffered from Major Recurrent Depression and Panic Disorder. Id. at ¶ 4. Ms. Chavez first claims that Charlene Wright, the preschool teacher Ms. Chavez assisted during the 2011–2012 school year, made multiple comments regarding Ms. Chavez’s weight. In December 2011 Ms. Wright told Ms. Chavez “[y]ou don’t need to sit on the floor because it is probably too hard for you to get yourself up.” Id. at ¶ 22. Additionally, Ms. Wright told Ms. Chavez on multiple occasions that Ms. Chavez did not eat enough to have weight issues and therefore probably had a slow metabolism. Id. at ¶ 23. In March 2012, while walking children to a school bus, Ms. Chavez realized that a backpack had been forgotten and ran back inside to retrieve it. Id. Ms. Wright followed Ms. Chavez and was unable to catch up to her. Id. She commented that “[f]or being so big, [Ms. Chavez] sure [was] fast.” Id. Finally, in April 2012, Ms. Chavez expressed an interest in a position at a middle school in the District, which prompted Ms. Wright to ask Ms. Chavez if she could “do all that walking[?]” Id.
Shortly thereafter ECC Assistant Principal Tami Brungard informed Ms. Chavez that she would not be assigned to Ms. Wright’s classroom the following school year. Id. at ¶ 28. Ms. Brungard said that Ms. Wright’s class would consist entirely of three-year-old children, that three-year-old children are rambunctious, and therefore, that Ms. Chavez would need to be constantly running around and on the floor. Id. On the last day of the school year Ms. Chavez complained to Ms. Brungard that her refusal to assign Ms. Chavez to that class constituted discrimination, but Ms. Brungard did not respond. Id. at ¶ 30.
Ms. Chavez also alleges that Ms. Wright gave false reports to school administrators about Ms. Chavez’s behavior. Ms. Wright and another ECC employee, Kate Beyer, reported to Ms. Brungard that Ms. Chavez was required to assist Ms. Wright with students in the gym and was not doing so. Id. at ¶ 25. However, Ms. Chavez was not required to be in the gym with Ms. Wright and the students. Id. Ms. Wright also falsely reported to ECC administrators that Ms. Chavez stole school property and sent Ms. Wright a hostile text message. Id. at ¶¶ 26, 29.
At the end of the 2011–2012 school year Ms. Chavez asked her supervisor, Mathieu Aubuchon, if she could transfer to another school in the District or take early retirement because of the depression, anxiety, and stress she was experiencing as a result of the alleged discriminatory treatment she received at ECC. Id. at ¶ 32. Mr. Aubuchon told Ms. Chavez that he could not help her transfer or enter early retirement and suggested that she apply to another school district. Id. Ms. Chavez also told Mr. Aubuchon and Ms. Brungard about Ms. Wright’s comments concerning her weight and age. Id. at ¶ 27. Pursuant to the District’s Non-Discrimination Policy Mr. Aubuchon and Ms. Brungard were required to promptly forward the report of discrimination and harassment to the District’s Compliance Officer. Id. at ¶ 34. However, neither of them did so. Id. Consequently, on June 28, 2012 Ms. Chavez filed a charge of age and disability discrimination with the United States Equal Employment Opportunity Commission (EEOC) (2012 Charge). Id. at ¶ 35. The District received the 2012 Charge on July 5, 2012. Id. at ¶ 37.
Ms. Chavez claims that the District formally disciplined her multiple times during the 2012–2013 school year in retaliation for her filing of the 2012 Charge. Specifically, she alleges that she was disciplined for exceeding her work hours in a manner inconsistent with the District’s policy. According to the District’s policy, ESP employees are required to comply with their assigned work hours. Id. at ¶ 41. Employees that work more than fifteen minutes beyond their assigned work hours are to receive a written warning after the first violation and a Memorandum of Understanding (MOU) after the second violation. Id. After the third violation the District’s Human Resources Office takes action. Id.
In October 2012 Ms. Chavez was assigned to work 37.5 hours per week. Id. at ¶ 38. On November 5, 2012 Ms. Chavez received an email from Ms. Brungard warning Ms. Chavez that she had exceeded her hours during the week of October 29, 2012. Id. at ¶ 39. A few weeks later Ms. Chavez received an MOU for the same incident. Id. at ¶ 40. Additionally, on March 11, 2013 Ms. Chavez received a written warning from Ms. Brungard informing Ms. Chavez that she had exceeded work hours for the week of March 4, 2013. Id. at ¶ 46. Once again, Ms. Chavez received a second disciplinary document, this time a “Letter of Reprimand, ” for the same instance of exceeding her hours. Id. at ¶ 47. This letter also alleged that Ms. Chavez had exceeded her assigned work hours ten times “to date.” Id. In May 2013 Ms. Brungard informed Ms. Chavez that she was henceforth required to use an electronic time clock to keep track of her hours. Id. at ¶ 48. Ms. Chavez alleges that while other ESP employees also exceeded their assigned work hours in violation of the District’s policy, none was similarly disciplined. Id.
Ms. Chavez also claims that she was forced to endure more comments about her weight during the 2012–2013 school year. In January or February 2013 Charito Landeo, the preschool teacher Ms. Chavez assisted that year, asked Ms. Chavez if she was able to get on top of her husband during sex. Id. at ¶ 42. Then, in March 2013 Ms. Landeo asked Ms. Chavez how she and her husband have sex. Id. at ¶ 44.
At the end of the 2012–2013 school year Ms. Chavez received an overall performance rating of “Unsatisfactory.” Id. at ¶¶ 18, 20, 50. She had received a rating of “Solid Performer” and “Superior” in years past. Id. She alleges that her 2012–2013 rating is a misrepresentation of her performance. Id. at ¶ 50. She believed this was in retaliation for her filing the 2012 Charge. On July 30, 2013 Ms. Chavez timely filed another charge of discrimination with the EEOC (2013 Charge). Id. at ¶ 8.
On February 13, 2014 the District notified Ms. Chavez that she was being involuntarily transferred to Hodgkins Elementary School (HES). Id. at ¶ 52. The District informed Ms. Chavez’s local union representative that Ms. Chavez was the first of many employees to be transferred; however, no other employees were transferred. Id. She alleges that on Ms. Chavez’s first day at HES she reported to the front office and asked where she should clock in. Id. at ¶ 53. The front desk employee offered to clock Ms. Chavez in and took down her ID number. Id. At the end of the school day Ms. Chavez clocked out using a computer in her classroom. Id. at ¶ 54. However, on February 28, 2014 the District placed Ms. Chavez on paid administrative leave for allegedly failing to clock in or out properly on her first day of work at HES. Id. at ¶ 55. Kirk Leday, the District’s Chief Human Resources Officer, next informed Ms. Chavez that her employment was going to be terminated. Id. at ¶ 56. Consequently, on March 13, 2014 Ms. Chavez submitted a Letter of Resignation. Id. at ¶ 57.
On April 22, 2014 Ms. Chavez filed a third charge of discrimination with the EEOC (2014 Charge) claiming that the District had retaliated against her for filing the 2013 Charge. Id. at ¶ 8. Then, on December 2, 2014 Ms. Chavez received a Notice of Right to Sue for the 2012, 2013 and 2014 Charges of discrimination, giving Ms. Chavez ninety days to institute a civil action in federal court. Id. at ¶ 10. Accordingly, on February 27, 2015 Ms. Chavez filed her Complaint with this Court. See ECF No. 1. She filed her Amended Complaint, now the operative complaint, on May 1, 2015. See ECF No. 17. Ms. Chavez alleges that the District violated (1) the Age Discrimination in Employment Act (ADEA) when it subjected her to a hostile work environment because of her age; (2) the Americans with Disabilities Act (ADA) when it subjected her to a hostile work environment because of her disabilities; (3) the ADA when it failed to reasonably accommodate her disabilities; (4) the ADEA, the ADA and Title VII of the Civil Rights Act when it retaliated against Ms. Chavez for filing the 2012 Charge; and (5) the ADEA, the ADA and Title VII of the Civil Rights Act when it retaliated against Ms. Chavez for filing the 2013 Charge. Id. at ¶¶ 57–76. The District moves to dismiss all of Ms. Chavez’s claims. See ECF No. 18.
II. STANDARD OF REVIEW
To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at 681. However, so long as the plaintiff offers sufficient factual ...