United States District Court, D. Colorado
MARIA E. BLEA, Plaintiff,
v.
CITY AND COUNTY OF DENVER DEPARTMENT OF HUMAN SERVICES, BRIAN YAUK, TONI BELLUCCI, GARY CRAIN, LORI NOBLE, JUNE ALLEN, and PAUL CAVENDER, Defendants.
ORDER ADOPTING THE NOVEMBER 26, 2018 RECOMMENDATION
BY UNITED STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
This
matter is before the Court upon the November 26, 2018
Recommendation by United States Magistrate Judge Reid
Neureiter that this Court grant Defendants' Motion to
Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) (Doc. # 37).
(Doc. # 51.) Plaintiff Maria Blea objects to Magistrate Judge
Neureiter's Recommendation on several grounds, only one
of which concerns the substance of the Recommendation. (Doc.
# 52.) For the reasons described herein, Plaintiff's
objections are overruled. The Court affirms and adopts the
Recommendation and grants Defendants' Motion to Dismiss.
I.
BACKGROUND
The
Magistrate Judge's Recommendation provides a recitation
of the factual and procedural background of this dispute and
is incorporated herein by reference. See 28 U.S.C.
§ 636(b)(1)(B); Fed.R.Civ.P. 72(b). Accordingly, this
Order will reiterate only what is necessary to address
Plaintiff's objections.
Plaintiff
was employed as an “Accounting Tech 1” by City
and County of Denver Department of Human Services
(“Defendant DDHS”) in 2015 and worked alongside
or was supervised by Defendants Brian Yauk, Toni Bellucci,
Gary Crain, Lori Noble, June Allen, and Paul Cavender
(together, the “Individual Defendants”) at all
relevant times. (Doc. # 7 at 8.) She alleges that she is (and
was, at all relevant times) diagnosed with multiple chemical
sensitivities; stated differently, she is allergic to
perfumes, lotions, and fragrances. (Doc. # 51 at 2.) From
what Magistrate Judge Neureiter gathered from Plaintiff's
argument at a hearing on Defendants' Motion to Dismiss,
Defendant DDHS gave her an office as an accommodation so that
she could work without exposure to fragrances or lotions from
her coworkers, but when she attended meetings, Plaintiff had
to wear sunglasses, a mask, and gloves. (Id.)
Plaintiff
proceeds pro se and brings her suit against
Defendants under the Americans with Disabilities Act (the
“ADA”), claiming
“discrimination/retaliation against a person with a
disability.” (Doc. # 7 at 5.) She alleges that
Defendants engaged in a litany of discriminatory practices
against her because of her disability, including unequal
treatment regarding leave, assignment of additional work, and
exclusion from parties. (Id. at 8-9.) Plaintiff
complains that Defendants' discriminatory practices
“created a hostile work environment and caused [her] to
no longer feel safe in the work environment, ” which in
turned caused her to develop PTSD, have “massive panic
attacks, ” render her unable to return to work, and
lead her to “lose her employment, her house, and her
ability to work.” (Id.)
Defendants
filed their Motion to Dismiss on July 27, 2018, and request
relief pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6). (Doc. # 37.) First, Defendant DDHS seeks
dismissal of Plaintiff's claim against it under Rule
12(b)(1), arguing that the claim against it is barred by
sovereign immunity, as guaranteed by the Eleventh Amendment.
(Id. at 3-5.) Second, Individual Defendants seek
dismissal of Plaintiff's claim under Rule 12(b)(6) for
failure to state a claim on the ground that “there is
no individual liability under the ADA.” (Id.
at 5-6.)
Plaintiff
responded to Defendants' Motion to Dismiss on October 17,
2018.[1](Doc. # 48.) Much of Plaintiff's
Response is block quotes from unknown sources about the ADA
and Colorado regulations. (Id.)
On
November 16, 2018, Magistrate Judge Neureiter heard
“extensive” argument on the Motion to Dismiss.
(Doc. # 51 at 2.) Plaintiff presented argument on her own
behalf.
Magistrate
Judge Neureiter issued his Report and Recommendation on
November 26, 2018, and recommended that this Court grant
Defendants' Motion to Dismiss. (Id.) He agreed
that Defendant DDHS is entitled to sovereign immunity under
the Eleventh Amendment and that Individual Defendants are not
“covered entities” and therefore cannot be liable
under the ADA. (Id.)
Plaintiff
filed her Objection to the Recommendation on December 7,
2018. (Doc. # 52.) Defendants responded to the Objection on
December 20, 2018. (Doc. # 53.)
II.
LEGAL STANDARDS
A.
REVIEWING AN OBJECTION TO A MAGISTRATE JUDGE'S
RECOMMENDATION
When a
magistrate judge issues a recommendation on a dispositive
matter, Federal Rule of Civil Procedure 72(b)(3) requires
that the district judge “determine denovo any part of the magistrate judge's
[recommended] disposition that has been properly objected
to.” An objection is properly made if it is both timely
and specific. United States v. One Parcel of Real
Property Known As 2121 East 30th Street, 73 F.3d 1057,
1059 (10th Cir.1996). In conducting its review, “[t]he
district judge may accept, reject, or modify the ...