United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART MOTION TO
S. Krieger Chief United States District Judge.
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.
Kulikowski's pro se Complaint (#
1) is lengthy, discursive, and difficult to parse.
It consists largely of attachments, and from those
attachments, the Court discerns the following facts.
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
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.
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”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.
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.
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.
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.”
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.”
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.
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) ...