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McGlothlen v. Karman, Inc.

United States District Court, D. Colorado

July 6, 2017

KARMAN, INC., Defendant.


          Nina Y. Wang United States Magistrate Judge

         This matter is before the court on Defendant Karman, Inc.'s (“Defendant” or “Karman”) Motion to Dismiss Complaint (the “Motion”). [#15, filed May 16, 2017]. The undersigned considers the Motion pursuant to 28 U.S.C. § 636(c), and the Order of Reference dated May 22, 2017 [#18]. The court concludes that oral argument will not materially assist in the resolution of this matter. Accordingly, upon careful review of the Motion and associated briefing, the entire case file, and applicable law, the court GRANTS the Motion for the reasons stated herein.


         On December 19, 2016, Plaintiff Barbara McGlothlen (“Plaintiff” or “Ms. McGlothlen”) initiated this matter by filing her Title VII Complaint and proceeds in this matter pro se.[1] [#1]. The undersigned set a Scheduling Conference in this matter for February 23, 2017. [#4]. However, neither Party appeared for the Scheduling Conference, prompting the court to issue an Order to Show Cause ordering Plaintiff to file proof of service on or before March 27, 2017, pursuant to Rule 4(m) of the Federal Rule of Civil Procedure, or to show cause as to why her case should not be dismissed for failure to prosecute pursuant to D.C.COLO.LCivR 41.1. [#6].

         On March 1, 2017, the Clerk of the Court filed a letter from Plaintiff dated February 23, 2017, wherein Plaintiff requested an eight-week extension of the relevant deadlines set by the Order Setting Scheduling Conference due to recent health issues. [#7]. In consideration of Plaintiff's letter, this court discharged the Order to Show Cause and granted Plaintiff's request for an extension of time, resetting the Scheduling Conference for April 20, 2017. [#9]. The court then converted the Scheduling Conference to a Status Conference given Plaintiff's failure to file proof of service and Defendant's absence from the proceeding. [#12]. The court ordered Plaintiff to file proof of service on or before May 5, 2017, and again reset the Scheduling Conference. [Id.].

         On May 3, 2017, Plaintiff filed an executed summons, indicating that Plaintiff served Defendant on April 25, 2017, and that Defendant's answer or response was due by May 16, 2017. [#14]. On May 16, 2017, Karman filed the instant Motion. [#15]. The court ordered Plaintiff to respond to the Motion on or before June 9, 2017, the same date as the Scheduling Conference. [#16; #21]. Plaintiff complied, and Defendant filed its Reply on June 23, 2017. [#23; #30]. Thus, the Motion is ripe for resolution.


         On or about August 1, 2005, Ms. McGlothlen began working for Karman as a Technical Designer. [#1 at 5, 16]. Karman is the manufacturer of Roper, Stetson, and Tin Haul clothing and footwear. [Id. at 16]. When Plaintiff began her employment with Karman, Karman maintained its offices at 14707 East 2nd Avenue in Aurora, Colorado. [Id.]. However, in March 2012, Karman moved its offices to 14100 East 35th Place, also in Aurora, Colorado. [Id.]. Plaintiff alleges that within three months of the move to the new office building, her health “took a dramatic turn for the worse”-she developed asthma, dyspnea, a cough, skin irritation, rashes, burning, stinging, fungal infection, eye irritation, eye infection, excessive sweating, fatigue, headaches, and lesions on her lungs. See [Id. at 9, 16-17]. Plaintiff alleges that, between June 2012 and September 2014, her deteriorating health caused her to miss work and to exhaust her sick and vacation leave as well as her Family Medical Leave Act (“FMLA”) leave. [Id.]. See also [id. at 17 (detailing various trips to Urgent Care and doctors' offices, and prescribed treatments for her ailments). Plaintiff “determined the cause of [her] dramatic decline in health was Occupational Asthma.” [Id.].

         On April 11, 2013, Plaintiff spoke with her supervisor, Julie Clayton-Horne, regarding her belief that workplace conditions were the cause of her recent health issues. [Id. at 17]. During this conversation, Ms. McGlothlen provided Ms. Clayton-Horne with a handwritten time line, detailing her six Urgent Care visits within the preceding ten months and her recent diagnosis of asthma and skin rashes and irritation; however, Ms. Clayton-Horne would not review the timeline or discuss it with Plaintiff. [Id.]. The following day, Plaintiff alleges that she had a coughing-episode while at work after she inhaled something in the bathroom. [Id.]. Plaintiff explained what had happened to Ms. Clayton-Horne and expressed her concern about the possibility of mold in the building; Plaintiff left work early that day. [Id.]. The following week, Plaintiff worked from home on three separate days because she was still “sick and scared about the workplace air.” [Id. (emphasis in original)].

         Over the next month, Plaintiff's ailments became noticeably worse while she was at work. [Id. at 18]. Because of this, Plaintiff had tests conducted to see if she tested positive for mold and mycotoxins-both are commonly associated with Occupational Asthma. [Id.]. Plaintiff informed both Ms. Clayton-Horne and Ed Gruben of Human Resources that she tested positive for mycotoxins. [Id.].

         On July 24, 2013, Ms. Clayton-Horne informed Plaintiff that Karman's office had been tested for mold and that Defendant was awaiting the results. [Id.]. Mr. Gruben allegedly told Plaintiff that she was a valuable employee, which was why Karman agreed to have the mold testing performed. [Id.]. Ultimately, the results of the mold testing “did not identify a problem with mold in the building, ” but Plaintiff's doctor, Dr. Mayer, sent a letter to Defendant requesting that it test the building for “possible degrading fiberglass lining in the HVAC ductwork and possible indoor air quality.” [Id. at 19].

         Plaintiff continues that, although Mr. Gruben received a copy of Dr. Mayer's letter, no additional testing occurred. [Id.]. Rather, on December 6, 2013, Plaintiff received a telephone call from a Claims Representative with Pinnacol Assurance, regarding a workers' compensation claim allegedly filed by Karman on her behalf without her knowledge or consent. [Id.]. Later that day, Plaintiff discussed the call with Ms. Clayton-Horne who allegedly informed Plaintiff that Karman felt obligated to file a workers' compensation claim based on Dr. Mayer's letter. [Id. at 20].

         Following the filing of the workers' compensation claim, Plaintiff alleges that management's “attitude and friendliness toward [her]” had changed. [Id.]. Plaintiff indicates that she “believe[s] that Pinnacol Assurance informed Karman of the potential liability if [it] was found at fault and advised Karman to try and persuade me to resign so there would be no liability.” [Id.]. Ms. Clayton-Horne also hired a second Technical Designer in “October-November 2013” because of an increased workload, but Plaintiff alleges her workload did not increase and that the new Technical Designer received work that typically went to Plaintiff. [Id.].

         Plaintiff's health continued to deteriorate between December 2013 and January 2014, ultimately resulting in a four-day hospital stay for the flu and asthma complications. [Id. at 20-21]. Following her discharge from the hospital, Plaintiff's doctors informed her not to return to work. [Id.]. On January 22, 2014, Plaintiff informed Ms. Clayton-Horne that she needed an additional month off work to recover; however, because Plaintiff had exhausted her sick and vacation leave, Ms. Clayton-Horne directed Plaintiff to contact Mr. Gruben about FMLA leave. [Id.].

         Plaintiff returned to work following her FMLA leave on February 24, 2014. [Id. at 21-22]. On February 25, 2014, the Occupational Safety and Health Administration (“OSHA”) conducted an investigation, pursuant to Plaintiff's request, into the air quality at Karman- OSHA informed Plaintiff that they did not find anything that could be the cause of her ailments. [Id.]. After OSHA's inspection, Plaintiff again noticed “a change in the attitudes of [her] co-workers, management, and supervisors.” [Id.]. Specifically, Plaintiff began overhearing co-workers discussing her medical issues, and believed that her supervisors had disclosed this information to her co-workers without her consent. [Id.]. According to Plaintiff, Ms. Clayton-Horne berated her for thinking Karman's building was the cause of her ailments, and other co-workers tried to convince her that the conditions at Karman were not the cause of her ailments. [Id. at 22-23]. Plaintiff “realized then that Karman was trying to push [her] out as they felt they could not fire me or let me go because of the Worker's Compensation claim[.]” [Id. at 22].

         Over the next several months, Plaintiff continued to have tests performed in hopes of identifying the cause of her ailments; however, these tests were unsuccessful. On May 15, 2014, Ms. Clayton-Horne moved Plaintiff to a different work area, but her symptoms continued. [Id.]. Plaintiff worked her last day at Karman on June 20, 2014. [Id.].

         On June 24, 2014, Plaintiff informed Ms. Clayton-Horne that she was going to utilize the rest of her FMLA leave to focus on her health. [Id. at 24]. Plaintiff received an additional eight weeks of FMLA leave through August 15, 2014. [Id.]. However, on August 15, 2014, Plaintiff emailed Ms. Clayton-Horne and Wendy Caywood that she would not be returning to work due to Karman's office causing her ailments-Plaintiff also sought her benefits. [Id.]. Plaintiff then exchanged emails with Ms. Caywood who sought to clarify whether Plaintiff intended to resign, return to work with accommodations, or utilize additional leave time. [Id. at 24-25]. Plaintiff responded that she enjoyed working for Karman but could not return to work unless Karman remedied the cause of her ailments or moved her to a new location. [Id.]. Ms. Caywood appeared to interpret this to mean that Plaintiff sought additional leave, but informed Plaintiff that Karman could not guarantee that her position would still be available once she could return to work given that Plaintiff's doctors did not provide a date certain that Plaintiff could return. [Id.].

         Plaintiff never returned to work for Karman. [Id. at 27]. Nor was she able to secure other employment, despite applying to other companies. [Id.]. Plaintiff alleges that Karman “blacklisted” her because of the workers' compensation claim. [Id.]. Plaintiff avers that she had an “excellent reputation in the garment industry as one of the best patternmakers in Colorado but [she] lost [her] reputation, [her] references, [her] career and income when [she] got sick when Karman moved to the new location and when Karman filed a Worker's Compensation claim for me without [her] knowledge or permission.” [Id. at 27-28].

         On February 26, 2015, Plaintiff completed an Equal Employment Opportunity Commission (“EEOC”) Intake Questionnaire indicating that Karman discriminated and retaliated against her because of disability, i.e., Occupational Asthma. See [id. at 5-11]. Though unclear, the Intake Questionnaire appears to predicate her discrimination claim on Mses. Clayton-Horne and Caywood's belief that Karman's office was not the cause of Plaintiff's ailments, and Karman's refusal to either fix the problem with their office or let Plaintiff work elsewhere. [Id.]. However, the EEOC dismissed Plaintiff's discrimination charge on September 16, 2016, determining that the evidence did not support such a claim. [Id. at 3].

         Plaintiff thus filed suit in this court. [#1]. Plaintiff seeks monetary relief for her: (1) past and future wages and medical expenses; (2) damage to her reputation because of the workers' compensation claim; (3) damage to her privacy when Karman disclosed her ailments to co-workers; and (4) loss of quality of life; Plaintiff also seeks declaratory relief in the form of a notice to all past employees of Karman that the air quality in their office building caused medical issues. [Id. at 31].


         I. ...

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