United States District Court, D. Colorado
R. BROOKE JACKSON, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on defendant’s motion for summary judgment [ECF No. 28]. For the reasons discussed below, defendant’s motion is granted in part and denied in part.
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 teachers with the instruction of preschool classes. 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 relevant times Ms. Chavez weighed between 290 and 320 pounds and suffered from Major Recurrent Depression and Panic Disorder. Id. at ¶ 4; ECF No. 29-1 at 43.
2011-2012 School Year
Ms. Chavez claims that Charlene Wright, the preschool teacher Ms. Chavez assisted during the 2011-2012 school year, made multiple comments regarding Ms. Chavez’s weight and/or age. For example, she alleges that Ms. Wright made comments such as “[y]ou don’t have to sit on the floor; it might be too hard for you to get up;” and “for being so big, you sure are fast.” ECF No. 29-1 at 35. Additionally, Ms. Wright told Ms. Chavez that Ms. Chavez did not eat enough to have weight issues and therefore probably had a slow metabolism. Id. at 42:24- 43:1. Furthermore, when Ms. Chavez expressed an interest in a position at a middle school in the District, Ms. Wright asked Ms. Chavez if she could “do all that walking?” Id. at 58:7-13. Ms. Chavez also alleges that Ms. Wright gave false reports to school administrators about Ms. Chavez’s behavior. For example, she asserts that Ms. Wright wrongfully accused her of stealing school property and bringing her son to the school to intimidate Ms. Wright. Id. at 66-69.
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. Id. at 120-25. She claims that Mr. Aubuchon told her that he could not help her and suggested that she apply to another school district. Id. Ms. Chavez also contends that she told Mr. Aubuchon and Ms. Brungard about Ms. Wright’s comments concerning her weight and age. Id. at 60. Pursuant to the District’s Non-Discrimination Policy, Mr. Aubuchon and Ms. Brungard were required to promptly forward reports of discrimination and harassment to the District’s Compliance Officer. ECF Nos. 28-3; 28-4. However, neither of them did so. 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). ECF No. 28-5. The District received the 2012 Charge on July 5, 2012. ECF No. 29-16.
2012-2013 School Year
Ms. Chavez claims that the District formally disciplined her multiple times during the 2012-2013 school year in retaliation for her filing the 2012 Charge. Specifically, she alleges that she was disciplined for exceeding her work hours in a manner inconsistent with the District’s disciplinary policy. According to the District’s policy as of August 2012, the first time an employee exceeded their weekly hours by more than 15 minutes she would receive a verbal reminder, the second violation would result in a written warning, and the third violation would result in a Memorandum of Understanding (MOU). ECF No. 29-2 at 31:9-24. In October 2012 Ms. Chavez was assigned to work 37.5 hours per week. ECF No. 17 at ¶ 38. Ms. Chavez claims that on November 5, 2012 she received an email from Ms. Brungard warning her that she had exceeded her hours during the week of October 29, 2012. ECF No. 28-15. Additionally, she asserts that a few weeks later she received an MOU for the same incident. ECF No. 28-16.
The District’s Policy changed on January 18, 2013. ECF No. 28-17. It stated that an employee would receive a written warning for her first time clock violation, an MOU for the second violation, and a Human Resources (HR) response after three or more violations. ECF No. 28-17. 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. ECF No. 28-18. Once again, Ms. Chavez received a second disciplinary document, this time a “Letter of Reprimand” for the same instance of exceeding her hours. ECF Nos. 28-19, 28-20. This letter also alleged that Ms. Chavez had exceeded her assigned work hours ten times “to date.” ECF Nos. 28-19, 28-20. Ms. Chavez claims that while other ESP employees also exceeded their assigned work hours in violation of the District’s policy, none were similarly disciplined. ECF Nos. 29-7 at 35, 29-5.
Ms. Chavez also claims that she endured 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. ECF No. 29-1 at 48:14-20. Then, in March 2013 Ms. Landeo asked Ms. Chavez how she and her husband have sex. Id. Finally, Ms. Landeo commented to Ms. Chavez, “Before you got fat I bet you had a really nice booty.” Id. at 51:14-16.
At the end of the 2012-2013 school year Ms. Chavez received an overall performance rating of “Unsatisfactory.” ECF No. 29-11. She had received a rating of “Solid Performer” and “Superior” in years past. She believes that that her 2012-2013 rating is a misrepresentation of her performance and was issued in retaliation for her filing the 2012 Charge. ECF No. 29-1 at 172. On July 30, 2013 Ms. Chavez timely filed another charge of discrimination with the EEOC (2013 Charge). ECF No. 28-6.
Transfer and Resignation
On February 13, 2014 the District notified Ms. Chavez that she was being transferred to Hodgkins Elementary School (HES). The District contends that Ms. Chavez volunteered for the transfer, but she considers the transfer to have been involuntary. ECF No. 29-1 at 228. Ms. Chavez alleges that when she reported to the front office and asked where she should clock in on her first day at HES, the front desk employee offered to do it for her. Id. at 209-12. She clocked out using a computer in her classroom at the end of the day. Id. 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. Id. at 219:8-12. She subsequently contacted her union representatives. Id. She claims that the UniServ director, John Whetzel, told her that the District intended to fire her. Id. at 219-220. Ms. Chavez, believing that her termination was imminent, submitted a letter of resignation to the District. Id.
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. ECF No. 28-12. 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. ECF No. 17 at ¶ 10. Accordingly, on February 27, 2015 Ms. Chavez filed her Complaint with this Court. 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 (Title VII) when ...