United States District Court, D. Colorado
BARBARA L. MCGLOTHLEN, Plaintiff,
KARMAN, INC., Defendant.
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
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.
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]. 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].
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
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.
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.”
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)].
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.].
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].
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].
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.
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.].
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
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.].
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.].
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].
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].
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].