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Kulikowski v. Payscale

United States District Court, D. Colorado

June 29, 2018

JAIMIE KULIKOWSKI, Plaintiff,
v.
PAYSCALE, Defendant.

          OPINION AND ORDER GRANTING IN PART MOTION TO DISMISS

          Marcia S. Krieger Chief United States District Judge.

         THIS MATTER comes before the Court pursuant to the Defendant's (“Payscale”) Motion to Dismiss (# 8), Ms. Kulikowski's response (# 9), and Payscale's reply (# 12). Also pending are additional motions by Ms. Kulikowski that essentially seek leave to amend her complaint (# 10, 14, 21), and a motion by Payscale (# 11) seeking to strike on of Ms. Kulikowski's motions to amend.

         FACTS

         Ms. Kulikowski's pro se[1] Complaint (# 1) is lengthy, discursive, and difficult to parse. It consists largely of attachments, and from those attachments, the Court discerns the following facts.

         From 2007 until March 24, 2018, Ms. Kulikowski was employed by Payscale. Her most recent job title was Client Manager, and her job duties involved managing clients, processing client renewals, training new users, and various other tasks. Ms. Kulikowski is of Polish ancestry and, most pertinently, suffers from Post Traumatic Stress Disorder (“PTSD”).

         As best the Court can determine, Ms. Kulikowski's issues with Payscale derive from four events. First, on September 12, 2017, Ms. Kulikowski was participating in a leadership training workshop at Payscale, when the trainer used the phrase “Every parent has a favorite child.” Ms. Kulikowski states that “this microaggression . . . sent me spiraling into a PTSD nightmare because I was [not] the favorite child in my family.” Beyond apparently identifying this incident as an event that triggered her PTSD, she does not elaborate further on this incident.

         Second, on September 24, 2017, Ms. Kulikowski requested, apparently pursuant to the Americans With Disabilities Act, that Payscale provide her with an accommodation for her PTSD in advance of an upcoming conference. Specifically, Ms. Kulikowski requested that Payscale provide her with “a private room where I could go and release emotions in the event I experienced a panic/trauma episode.” Payscale asked Ms. Kulikowski to complete some medical paperwork in furtherance of her request, and then scheduled a meeting with Ms. Kulikowski, Human Resources representative Crystal Rose, and Payscale CEO Mike Metzger, to discuss her request and other issues. Ms. Kulikowski stated that she “feel[s] incredibly unsafe with both”[2]Ms. Rose and Mr. Metzger, and asked to have certain Payscale officials accompany her to the meeting. Payscale refused to authorize the requested individuals and offered Ms. Kulikowski the option to be assisted by certain other individuals. Ms. Kulikowski refused that offer and Payscale ultimately cancelled the meeting. Ms. Kulikowski appears to allege that her request for the private room during the conference was also denied. It is not clear whether the conference took place, whether Ms. Kulikowski participated as intended, or whether the absence of a private room affected her participation at the conference.

         Third, at some point in October 2017, a Payscale employee posted an anonymous online comment about the company, accusing it of racism. Ms. Rose and Mr. Metzger sent out an email to all employees, acknowledging awareness of the online comment, emphasizing Payscale's complaint process and anti-discrimination initiatives, and inviting employees to bring complaints to management. Ms. Kulikowski “was appalled at this e-mail” because she “had been submitting complaints about discrimination and inequity for almost a month” but had not been taken seriously. It is not clear whether the “complaints” she refers to are those regarding her PTSD accommodation, or some other complaints; beyond the statement quoted above, Ms. Kulikowski provides no other detail about this incident.

         The Court pauses the chronology here for a moment. On October 25, 2017, Ms. Kulikowski filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). She alleged that she had been discriminated against because of her sex, disability, and national origin (her Polish ancestry), and recited the second and third events set forth above. Ms. Kulikowski seems to suggest in her Complaint that she subsequently withdrew the EEOC charge, she also attaches an EEOC Notice of Right to Sue, dated December 27, 2017, in which the EEOC advises her that it was unable to conclude that Payscale had violated Title VII or the ADA, and that Ms. Kulikowski was free to commence her own suit within 90 days.

         The fourth and final incident has a somewhat involved backstory. In late October, Payscale approved Ms. Kulikowski to take several months' leave under the Family and Medical Leave Act (“FMLA”). On November 2, 2017, Payscale sent her an e-mail informing her that she was eligible for a $1, 000 bonus award for having completed 10 years of service with the company. (Ms. Kulikowski notes that her actual anniversary was in July, and that “getting an email about an anniversary gift almost half a year [late] feels like covert harassment.”) Because she was on leave, Ms. Kulikowski did not promptly receive this e-mail. In March 2016, after she had returned from leave, Payscale contacted her again about the award, referencing the e-mail of November 2, 2017. Ms. Kulikowski states that “[s]eeing the date of Nov. 2d” triggered her recollection of a difficult period during her FMLA leave when she lost the support of her trusted therapist. She states that her “nervous system started to get revved” at the memory. She responded to Payscale that she did not want the $1, 000 award, and instead wanted “an open and transparent conversation with senior leadership and the leadership trainer around what happened during the fall of 2017.” She stated that, if such a conversation was not possible, Payscale should donate the $1, 000 to a charity of its choice. When Payscale asked her to designate a charity, she concluded that “they were not willing to repair the conflict with me peacefully” and asked that Payscale donate the money to the United States Holocaust Museum, in honor of a relative of hers who was executed in Auschwitz. She states that she “received another reprimanding email from HR a couple of days later, ” although she does not elaborate on that emails' content.”

         It was that e-mail that, Ms. Kulikowski alleges, caused her to experience a “PTSD rage episode.” Although the Complaint does not describe this episode in any meaningful detail, it appears that on March 23, 2018, Ms. Kulikowski went to the Payscale office with the intent of discussing the “triggering” e-mail with Payscale officials. While there, she acknowledges that she was in the “fight” phase of a “fight-flight-freeze” response. The Court can infer that Ms. Kulikowski made threatening statements to or about her co-workers, and that the co-workers reported those threats to Payscale management. Payscale e-mailed Ms. Kulikowski that “due to the behaviors reported this afternoon, ” she was being placed on administrative leave pending an investigation. The following day, Payscale informed Ms. Kulikowski that her employment was being terminated. In a post-termination e-mail to Payscale, Ms. Kulikowski asserts that “knowing that some of your employees have PTSD should have prompted leadership to get formal training on the disorder.”

         Two days later, Ms. Kulikowski commenced this action. Reading her Complaint liberally, the Court understands her to allege claims under both Title VII of the Civil Rights Act (sounding in national origin discrimination due to her Polish heritage and possibly also sex discrimination) and under the ADA (in that her PTSD constitutes a protected disability). The Court understands her to primarily challenge her termination from employment on March 24, 2018, but it is clear that she also contends that she was denied a reasonable accommodation for her PTSD under the ADA, both in the specific sense that it denied her request for a private room in October 2017, and in the more general sense that it failed to get appropriate training for dealing with employees with PTSD, leading to her termination in March 2018.

         Payscale has moved (# 8) to dismiss Ms. Kulikowski's Complaint on two grounds: (i) that Ms. Kulikowski failed to exhaust her administrative remedies by filing a Charge of Discrimination with the EEOC regarding her termination before filing suit; and (ii) ...


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