United States District Court, D. Colorado
RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS
PURSUANT RULE 12(b)(1) and 12(b)(6) (Dkt. #37)
Neureiter United States Magistrate Judge
a discrimination case brought by Maria Blea against the City
and County of Denver Department of Human Services (the
"DDHS") and a number of individual employees of
that Department (collectively "Defendants"). The
matter is before the Court on Defendants' Motion to
Dismiss (Dkt. #37), filed July 27, 2018, which was referred
by Judge Arguello for recommendation on August 15, 2018.
Plaintiff Maria Blea filed her complaint, without the
assistance of counsel, on December 27, 2017. (Dkt. #1) The
next day, Magistrate Judge Gallagher issued an order
directing Ms. Blea to cure the deficiency of the complaint
not being in the proper form. (Dkt. #3) On January 25, 2018,
Ms. Blea, still proceeding pro se, amended her complaint.
(Dkt. #7). The Amended Complaint is the operative pleading in
27, 2018, Defendants moved to dismiss on governmental
immunity and other grounds. (Dkt. #37.) On September 17,
2018, Defendants moved to stay all discovery as well as any
Rule 26 disclosures. (Dkt. #42.) The stay was granted on
September 18, 2018. (Dkt. #46.)
November 16, 2018, the Court heard extensive argument on
Defendants' Motion to Dismiss. Plaintiff was present and
presented argument on her own behalf.
Blea was an employee in the Department of Human Services of
the City and County of Denver. Her position was Accounting
Tech 1. Although not detailed explicitly in her Amended
Complaint, at oral argument, Ms. Blea explained that her
disability is a diagnoses of multiple chemical sensitivities,
meaning that she is allergic to perfumes, lotions, and
fragrances. As an accommodation, she was given an office,
which allowed her to work without being regularly exposed to
any fragrances or lotions that her coworkers may have worn.
When Ms. Blea attended meetings, she had to wear sunglasses,
a mask, and gloves. When regular office events took place,
Ms. Blea felt ostracized because she could not participate.
She felt uncomfortable wearing her mask around her co-workers
in such situations.
Blea says she was repeatedly asked by her supervisor,
Defendant Brian Yauk, what her medical condition was, which
Ms. Blea felt was a violation of her medical privacy. Ms.
Blea says that she was discriminated against due to her
disability because she was not allowed to make up time when
others were permitted make up time. Ms. Blea further alleges
that in a September 2015 meeting with a Human Resources
Representative, Mr. Yauk slammed his fist on the table,
yelled at Ms. Blea, and called her a liar. He then
"shook his closed fist" and allegedly came within
inches of hitting Ms. Blea. In this meeting, Mr. Yauk
allegedly said that "he could not tell if Ms. Blea was
laughing or smirking" because she was wearing the
sunglasses and mask that her disability required.
Blea recounts a general pattern of unfair and unequal
treatment in the assignment of work, the grant of leave, and
other practices. For example, after Ms. Blea was out on
leave, and upon returning to work, she alleges that her
"files and e-mails had been deleted from her
computer," but "no one knew what happened." As
Ms. Blea says in her Amended Complaint, she "was
targeted, singled out, and retaliated against on several
other occasions. Each time she brought up something, it was
turned around and used against her." Ms. Blea says she
was "treated differently once she received her Americans
with Disability Act ("ADA") accommodation."
The mistreatment included assignment of additional work, lack
of communication, exclusion from parties, and unfair
treatment in the distribution of work. Ms. Blea says she was
informed by an attendee at her ADA accommodation meeting that
Defendant June Allen stated, "Do what you need to do to
get rid of her [Ms. Blea]."
Ms. Blea alleges that a hostile and discriminatory work
environment was created based on her disability that was so
severe that it caused Ms. Blea to no longer feel safe in the
work environment. Ms. Blea developed PTSD, making her unable
to return to work, which caused her to lose her employment,
her house, and her ability to work.
Blea has sued DDHS and a number of her co-workers at that
Department, including Mr. Yauk, her supervisor. She has sued
under what she terms the "ADA Notification Act" and
alleges a claim of discrimination and for "retaliation
against a person with a disability."
Pro Se Pleading Standard
Blea has pled her case and argued her position without the
assistance of counsel. Because she is bringing this lawsuit
by herself, without an attorney, the Court must be more
liberal in considering her allegations, as compared to a case
where an attorney is present. In Hall v. Bellmon,935 F.2d 1106, 1110 (10th Cir. 1991), the Tenth Circuit Court