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Aubrey v. Koppes

United States District Court, D. Colorado

January 4, 2018

KIMBERLY AUBREY, Plaintiff,
v.
CARLY KOPPES, in her capacity as Weld County Clerk and Rec, and WELD COUNTY, COLORADO BOARD OF COUNTY COMMISSIONERS, Defendants.

          RECOMMENDATION ON MOTION TO DISMISS

          MARK L. CARMAN UNITED STATES MAGISTRATE JUDGE

         This matter comes before the court on Defendant Weld County Board of County Commissioner' Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6). The Motion was referred to Magistrate Judge Carman pursuant to the Order of Reference dated November 13, 2017 (Doc. 28). The court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law. For the following reasons, the court recommends that the Motion be Granted in Part and Denied in Part.

         BACKGROUND

         Kimberly Aubrey ("Plaintiff) filed her initial complaint on June 20, 2017 in this matter. Following the filing of a motion to dismiss Plaintiff filed an Amended Complaint (Doc, 21). The Amended Complaint named Carly Koppes, in her official capacity, and the Weld County Board of Commissioners ("Defendants"). The Amended Complaint set forth three causes of action.

         1. Disability discrimination in violation of the Americans with Disability Act ("ADA" or "ADAAA"), the Rehabilitation Act and the Colorado Anti-Discrimination Act ("CADA").

         2. Retaliation in violation of the ADA, the Rehabilitation Act and the Colorado Anti-Discrimination Act.

         3. Failure to provide reasonable accommodation in violation of the ADA. the Rehabilitation Act and the Colorado Anti-Discrimination Act.

         Plaintiff alleges that she was hired by the Weld County Clerk and Recorder as a Technician II in the Motor Vehicle Department in June of 2012 and promoted to a Technician III in December of 2012. At some point she was transferred to the Elections Department.

         In late 2014 the Plaintiff was diagnosed with Posterior Reversible Encephalopathy Syndrome, a serious medical condition with neurological impact, which rendered her disabled. At times she was confined to bed, experienced seizures and was in a coma. As a result of this condition the Plaintiff requested and received Family Medical Leave from her position in the Elections Department on or about December 8, 2014. The leave was exhausted on or about February 22, 2015. Plaintiffs doctor notified Weld County Human Resources that it was anticipated that the Plaintiff should be able to return to work August 1, 2015. Plaintiff was recovering and sought to see her neurologist to obtain a release to return to some level of work. Being unable to see her neurologist in Denver, she made an appointment for a neurologist in Greeley, Colorado on May 22, 2015 to obtain a work release for some type of work prior to the August 1, 2015 date.

         On April 15, 2015 the Plaintiff received a pre-dismissal notice which indicated Plaintiff was unable to perform the essential functions of her job and could not be accommodated. (Doc, 21, ¶¶ 22-23).[1] Plaintiff alleges that Defendants had not inquired as to restrictions on the Plaintiffs activities, nor what accommodations might allow Plaintiff to perform the essential functions of her job. Plaintiff further alleges that at the time of the pre-dismissal notice Plaintiff was able to perform the essential functions of her job with unspecified accommodation. A pre-dismissal hearing was set for the morning of April 16, 2015. During the hearing it was made clear that the Plaintiffs job performance was good and she was qualified for the position. Portions of a transcript of the hearing were quoted in the Amended Complaint which indicated a strong desire by Plaintiff to return to work, as well as some statements as to continued problems. When asked if she could return to work in the next couple of weeks, Plaintiff stated:

Plaintiff: Actually, if you asked me to, I could come back next week. But I would not be able to do the things you asked me to. I mean, I could not go to Motor V. I would probably have to be somewhat retrained. I am finally remembering some of the things I did in election, you know.

         (Doc. 21, ¶ 35). In addition, Plaintiff said she would need some prompting, could not drive a car, and was having problem with her vision which made some tasks difficult. She expressed that she would take a Technician II position and that she had an appointment to see her doctor on May 22, 2015.

         On April 20, 2015 Defendants informed Plaintiff by letter that due to her inability to return to work until July 31, 2015[2] that she was being dismissed from her employment with the Weld County Clerk & Recorder's office immediately. On June 4, 2015 Plaintiffs neurologist sent a release to return to work for Plaintiff. Apparently, Defendants requested some clarification regarding the release to work document. At some point the Defendants informed Plaintiff that the only available positon was in the Motor Vehicle Department. The Amended Complaint indicates that Plaintiff could have performed some tasks in the Motor Vehicle Department, but could not have worked "front line dealing with customers" (Doc. 21 ¶ 50). Apparently the Plaintiff was offered a position in the Motor Vehicle Department, and informed Defendant that she could not work with the public. Pleadings following Plaintiffs termination are vague and it is difficult to determine when conversations occurred between Plaintiff and Defendants and what positions were available.

         STANDARD OF REVIEW

         B. Fed.R.Civ.P. 12(b)(6)

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court may dismiss a complaint for "failure to state a claim upon which relief can be granted." See Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule 12(b)(6). the court must "accept as true all wellpleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff." Casanova v. Ulibarri, 595 F.3d 1120, 1124-25 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). The court is not, however, "bound to accept as true a legal conclusion couched as a factual allegation." Bell Atlantic Corp. v. Twombfy, 550 U.S. 544, 555 (2007). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, this court may consider exhibits attached to the Complaint without converting the motion into one for summary judgment pursuant to Rule 56. See Hall v. Bellmon, 935 F.2d 1106, 1112 (10th Cir. 1991).

         To survive a motion to dismiss, "a complaint must contain sufficient factual matter. accepted as true, to state a claim to relief that is plausible on its face." Ashcroft, 556 U.S. at 678 (internal quotation marks omitted). A claim is plausible when the plaintiff "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The nature and specificity of the allegations required to state a plausible claim will vary based on context." Kansas Perm Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). This standard requires more than the sheer possibility that a defendant has acted unlawfully. Ashcroft, 556 U.S. at 679. Facts that are "merely consistent" with a defendant's liability are insufficient. Id. at 678. The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         ANALYSIS

         Defendants assert that Plaintiffs Amended Compaint fails to set forth a recognizable claim, but rather establishes that the Plaintiff was unable to perform the essential functions of her job, with or without reasonable accommodation.

         Claim I: Americans With Disablities Act and the Colorado Anti-Discrimination Act

         These parallel statutes prohibit employers from discriminating against employees based upon disability and requires employers to make reasonable accommodations to qualified individuals, unless the accommodations impose an undue hardship on the employer. 42 U.S.C. §§ 12102, et seq. and Colo. Rev. Stat. §§ 24-34-401, el seq. A prima facie case of discrimination requires the establishment of three elements: the plaintiff (1) is a disabled person as defined by the ADA; (2) is qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) suffered discrimination by an employer or prospective employer because of that disability. Zwygart v. Bd. of Cty. Comm 'rs, 483 F.3d 1086, 1090 (10th Cir. 2007); Carter v. Pathfinder Energy Servs., Inc. 662 F.3d 1134, 1142 (10th Cir. 2011); and Felkins v. City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014). As noted above. the Plaintiff is not required to establish a prima facie case, but a review of the elements of the cause will assist the court in determining if plaintiff has set forth a plausible claim. Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).

         Plaintiffs claims pursuant to the ADA and the CADA will be considered together. The ADA and CADA are parallel statutes and the Colorado courts rely upon ADA cases in the interpretation of the CADA. Gamble v. Levitz Furniture Co., 759 P.2d 761, 763-766 (Colo.App. 1988). In the context of this case neither party had identified any aspect of the CADA which differs from the ADA. Therefore, the CADA claims will be determined by the consideration of Plaintiffs claims pursuant to the ADA.

         1. Plaintiff disabled as defined by ADA.

         Disability is defined at 42 U.S.C. § 12102 of the ADA as follows:

         (1) Disability

         The term "disability" means, with respect to an individual-

(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such impairment (as described in ...

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