United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION TO
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE
Janet Thompson and Deborah Solis (together,
“Plaintiffs”) bring this suit against Westminster
Public Schools (“Defendant”), alleging violation
of the Americans with Disabilities Act (ADA) and constructive
discharge. (See ECF No. 22.) Defendant moves to
dismiss Plaintiffs' constructive discharge claim pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
For the reasons set forth below, Defendant's Motion is
purposes of this Motion the Court will take the following
factual allegations, taken from Plaintiffs' Amended
Complaint, to be true:
Plaintiff Thompson was a bus driver with Westminster Public
Schools from 1997 until 2015. (ECF No. 22 at 3, ¶¶
9, 11.) Plaintiff Solis was a bus monitor from 1996 until
2015. (Id. ¶¶ 10, 11.) Plaintiffs worked
together on the same bus from 2013 until 2015. Plaintiff
Thompson was diagnosed with breast cancer in 2012 and was
placed on medication that caused frequent nausea and
vomiting. (Id. at 3-4, ¶¶ 3, 18.)
Plaintiff Solis was diagnosed with neurofibromatosis at the
age of ten. Her illness requires her to use a permanent
urostomy appliance, which needed to be emptied four to six
times a day-if she is unable to empty the appliance, it will
leak, soiling her clothes. (Id. at 5, ¶ 30.)
Thus, both Plaintiffs needed frequent access to a restroom
were assigned to Route 22, which services students with
special needs in two school districts. (Id. at 7,
¶¶ 41-43.) Therefore, Plaintiffs' route covered
a longer distance than the District's other bus routes.
(Id.) “[B]us drivers and school bus monitors
were not allowed to use the restrooms in any of the schools
they serviced.” (Id. ¶ 39.) Thus,
Plaintiffs' conditions required them to deviate from
their bus route to use other public restrooms, such as in
convenience stores. According to Plaintiffs, Defendant was
aware that the “Plaintiffs experienced significant
physical disabilities which caused them to take frequent off
route restroom breaks.” (Id. at 16, ¶
113.) Between 2001 and 2010, Plaintiffs were each rated as
proficient or higher in every category of their annual
performance reviews. (Id. at 7-8, ¶¶
the 2015-2016 school year, Plaintiffs were scheduled to work
Monday through Friday 5:30 a.m. until 8:45 a.m. and 1:45 p.m.
until 5:00 p.m., except on Wednesdays when the afternoon
shift would be from 12:30 p.m. until 3:15 p.m. (Id.
at 8, ¶¶ 52-53.) On Wednesdays, Plaintiffs were
expected to arrive at Legacy High School in Adams County by
12:15 p.m. (Id. at 8, ¶ 55.) They approached
their supervisor and asked to alter their schedules to begin
at 12:00 p.m. on Wednesday afternoon instead of 12:30 p.m.,
which would enable them to arrive at Legacy High School by
12:15 p.m., as required. (Id. at 9, ¶ 56.)
after they made this request, Defendant began to scrutinize
Plaintiffs' performance with a GPS tracker to identify
their location. (Id. ¶ 58.) On August 25, 2015,
Defendant learned that Plaintiffs had stopped at ¶
7-Eleven convenience store from 7:58 a.m. until 8:20 a.m.
(Id. ¶ 59.) Defendant interpreted this stop as
evidence that Plaintiffs were wasting time. (Id.)
However, Plaintiffs claim that they stopped at the 7-Eleven
to use the restroom, because Plaintiff Thompson needed to
vomit and Plaintiff Solis needed to empty her urostomy
appliance. (Id. ¶ 60.) After the stop,
Plaintiffs completed their route, reported back to the
garage, and clocked out at 8:45 a.m. (Id. ¶
61.) On September 2, 2015, an employee of the Defendant
tailed the Plaintiffs to a 7-Eleven convenience store and
stopped at the location from 8:05 a.m. until 8:22 a.m.
(Id. ¶ 62.) Again, Plaintiffs reported back to
the transportation garage and clocked out at 8:45 a.m.
(Id. ¶ 63.)
September 11, 2015, the Plaintiffs were called into a meeting
with Defendant's Human Resources Director Leday to
discuss the “falsification of [their] time
sheets.” (Id. at 10, ¶ 64, 66.) During
this meeting, both Defendants were placed on investigatory
leave with pay. (Id.) At this meeting, Plaintiff
Thompson provided a doctor's note to Director Leday
explaining her medical condition and need for frequent
restroom trips. (Id. at 65.) At this meeting,
Director Leday also asked Plaintiff Solis to provide him with
a doctor's note regarding her health condition.
(Id. ¶ 68.) She attempted to provide him with
one on September 17, 2015, but he refused to read it.
(Id. ¶ 69.) At the September 11, 2015 meeting,
Plaintiffs were provided with a letter from Leday saying they
were accused of falsifying their official time sheet records
and leaving their duty assignment without authorization.
2015, Plaintiffs were represented by the Westminster
Education Association (“Union”) and its
President, Rosie Jaramillo. (Id. ¶ 70.)
Jaramillo asked Leday to drop the charges against Plaintiffs
since the Plaintiffs were able to provide doctor's notes
explaining why they needed to use the restroom off route.
(Id. at 11, ¶ 71.) In the same e-mail,
Jaramillo notified Leday of past practices of other bus
drivers of stopping off route to go to the restroom during
their bus run, including a current supervisor who used to
park the bus by her house to go to the restroom.
(Id. ¶ 72.)
September 17, 2015, Leday had separate meetings with each
Plaintiff and Jaramillo was present for both meetings.
(Id. ¶ 74.) In his meeting with Solis, Leday
showed them video footage of Plaintiffs driving around the
7-Eleven parking lot and purchasing items from the store.
(Id. ¶ 75.) During this meeting, he told
Plaintiff Solis that she could either resign or be terminated
from her position. (Id. ¶ 76.) Shortly after
this meeting, Plaintiff Solis tendered her letter of
resignation and it was accepted by Defendant on September 22,
2015. (Id. ¶ 78.)
his meeting with Plaintiff Thompson and Jaramillo, Leday told
Thompson that an investigation had been conducted and told
her about the video. (Id. at 12, ¶ 79.)
Plaintiff Thompson explained that she and Plaintiff Solis had
to stop to use the restroom and that sometimes they purchased
items because they felt obligated to do so. (Id.,
¶ 80.) As with Plaintiff Solis, during this meeting,
Leday told Plaintiff Thompson that she could either resign or
be terminated from her position, and specifically told her
that if she wanted unemployment benefits, she should resign.
(Id. ¶¶ 81-82.) Shortly after this
meeting, Plaintiff Thompson tendered her letter of
resignation and it was accepted by Defendant on September 22,
seek relief for Defendant's alleged violation of the ADA
and constructive discharge.