United States District Court, D. Colorado
RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE
action-by a former office technician against the
county that employed her-seeks damages for
alleged disability discrimination, failure to provide
reasonable accommodation, and retaliation in violation of the
Americans with Disabilities Act (ADA), 42 U.S.C. §
12101, et seq., Rehabilitation Act, 29 U.S.C. §
701, et seq., and Colorado Anti-Discrimination Act
(CADA), Colo. Rev. Stat. Ann. § 24-34-401, et
seq. Before the Court are (1) Defendant Weld
County's motion for complete summary judgment (ECF Nos.
72, 73, 88) and (2) Plaintiff Kimberly Aubrey's
cross-motion for partial summary judgment, which narrowly
seeks a determination that she was “disabled”
within the meaning of the ADA (ECF Nos. 74, 85). The parties
have responded to the others' respective motions, and the
matters are fully briefed. (ECF Nos. 72, 73, 74, 81, 84, 85,
88.) For the following reasons, the Court grants the
Weld County Clerk and Recorder's Office comprises three
departments: Recording, Motor Vehicle, and Elections.
(R-DSUMF ¶ 2.) On June 21, 2012, the County hired
Plaintiff Kimberly Aubrey as an Office Technician II in the
Motor Vehicle Department. (DSUMF ¶ 1.) Shortly
thereafter, the County promoted her to Office Technician III.
(Id. ¶ 2.) On September 6, 2013, she
transferred to the Recording Department. (Id. ¶
3.) Among other things, an employee in that role
[e]xamines and analyzes legal documentation submitted for
land record recording. Assesses and collects all associated
fees as required by law. Issues marriage licenses and civil
union licenses and registers marriage and civil union
certificates. Assists the public in person, by phone, through
electronic media, and in writing regarding search procedures
and requirements. Other duties may be assigned. . . .
Reasonable accommodations may be made to enable individuals
with disabilities to perform the essential functions. . . .
The organization retains the right to modify or change the
duties and responsibilities of the job at any time.
(R-DSUMF, Ex. 11.) As an employee, Aubrey was well-liked and
considered hard-working by her superiors, including Defendant
Carly Koppes. (Id. ¶¶ 8-9.) In 2014,
Koppes, an Election Department head, ran for public office
and could no longer oversee that department. To help fill the
void, Aubrey temporarily transitioned to Elections and was to
return to the Recording Department when the election
concluded. (Id. ¶¶ 6-7.) Koppes won and
became County Clerk and Recorder in January 2015.
(Id. ¶ 1.)
Aubrey's Medical Condition and Time Away from
2014, Aubrey developed a rare medical condition known as
Posterior Reversible Encephalopathy Syndrome (PRES), a blood
pressure regulatory problem that affects brain function,
undermines cognitive ability, and can even cause coma and
death. (DSUMF ¶¶ 6-8.) Aubrey experienced severe
anxiety, tremors, seizures, and brain-swelling that caused a
coma. (PSUMF ¶¶ 6, 10-11.) She also had severe
limitation of her functional capacity. (Id. ¶
12.) On December 8, 2014, because of her condition, Aubrey
applied for work leave under the Family Medical Leave Act
(FMLA), which was approved by the County's third-party
FMLA claims administrator, FMLA Source. (DSUMF ¶¶
4-6.) While she was away, the County sent Aubrey a letter
explaining her rights to job-protected leave under the FMLA
and Colorado Family Care Leave Act (CFCA) and notifying her
that “[i]n order to be restored to your job, you must
present to your employer certification from your doctor
stating that you are fit to return to work.”
(Id. ¶¶ 64-65, Ex. T.) Aubrey's FMLA
leave expired on February 22, 2015. (Id. ¶ 9.)
during and after her leave, Aubrey saw several medical
professionals. Dr. Angela Swayne at the Northern Colorado
Long Term Acute Hospital admitted Aubrey and anticipated her
return to work date would be August 1, 2015. (Id.
Mark Bernsten, who also treated Aubrey for her PRES, issued a
FMLA leave of absence medical certification for her.
(Id. ¶¶ 16-18.) On December 31, 2014, he
related that Aubrey suffered from severe tremors, anxiety,
and an inability to focus. (Id. ¶ 20.) At that
time, he found that Aubrey would be unable to work until
February 1, 2015. (Id. ¶ 21.) On March 9, 2015,
Dr. Bernsten filled out an attending physicians statement, in
which he opined that-based on her February 27 visit-Aubrey
had a Class-5 physical impairment, meaning she was unable to
perform any job task and not capable of taking care of
herself. (Id. ¶¶ 22-27, Ex. L.) He
recommended vocational counseling and rehabilitation and
clarified that no job modifications or restrictions would
permit her to work for the next four to six months.
(Id. ¶¶ 28-29, Ex. L.)
treating physician, Dr. Revelyn Arrogante at the Northern
Colorado Rehabilitation Hospital, explained that Aubrey's
PRES caused cognitive issues (including with executive
functioning, attention, and memory), balance issues,
respiratory problems, a seizure disorder, peripheral vascular
disease, depression, and visual deficits. (Id.
¶¶ 32-33.) On February 11, 2015, Dr. Arrogante
recounted severe impairments with executive functioning and
verbal reasoning and mild impairment with attention and
memory-all of which impacted Aubrey's ability to work
because she would be unable to sufficiently process any
issues. (Id. ¶¶ 35-38.) On that date, Dr.
Arrogante signed an FMLA leave of absence certification for
FMLA Source indicating that hospitalization was medically
necessary and that Aubrey was receiving 24-hour nursing care,
as well as physical, occupational, speech, and respiratory
therapies. (Id. ¶¶ 39-40.) In Dr.
Arrogante's opinion at that time, Aubrey would not be
able to return to work in any capacity until July 31, 2015.
(Id. ¶¶ 41-45.)
language pathologist Michelle Underhill also treated Aubrey
at the Life Care Center of Greeley. (Id.
¶¶ 47-48.) On February 24, 2015, Underhill
diagnosed Aubrey with a cognitive communication deficit and
found that she was struggling with attending to and
manipulating visual-spatial information; was severely
deficient in communicating her thoughts, needs, and wishes;
had difficulties with planning, organizing, and strategizing;
and was unable to complete basic tasks. (Id.
¶¶ 54-56.) Even so, Underhill noted that Aubrey had
sufficient vision, hearing, and alertness to participate in
therapy; had demonstrated higher functional levels compared
to her current condition; was responding positively to
therapy; and that Aubrey's age and self-motivation were
strong indicators of improvement. (Id. ¶ 57.)
As of April 1, 2015, according to Underhill, Aubrey was
“unable to work pending resolution of
cognitive-linguistic concerns.” (Id.
¶¶ 53, 57.)
all this time, Aubrey stayed in contact with the County. On
February 27, 2015, after her FMLA leave had expired, she
called the County's benefits manager to say she had been
released from the hospital, but-even though her condition was
“reversible”-it would be months before she could
return to work because of her memory problems and her
inability to see well. (R-DSUMF ¶¶ 12-13.) While
Aubrey was away, another employee, Michelle Wall, had been
temporarily performing Aubrey's duties in the Recording
Department. (Id. ¶ 11, Ex. 6.)
Resources Director Patricia Russell testified that the
County's typical process for medical accommodations makes
a disabled employee responsible for filling out an ADA form,
taking it to their physician with a copy of their job
description, and having the medical professional return it so
the County knows what accommodations can or cannot be made.
(Id. at Ex. 4.) Depending on the situation,
employees have about fifteen days to complete this task, but
more time is given in certain circumstances if the employee
requests it or it is in the County's best interest.
(Id.; see also Id. at ¶¶ 21-22
(Koppes agreeing that she sometimes extends the time per her
discretion).) Though no one ever told her there was a
deadline, the County had told Aubrey that she needed medical
clearance to return to work. (Id. ¶ 17; DSUMF
¶¶ 64-65, Ex. T.)
was aware that Aubrey's FMLA leave expired had on
February 22, 2015, and had permitted her leave to extend long
beyond that date. (R-DSUMF ¶¶ 23-24.) But on April
15, 2015, Koppes sent Aubrey a letter scheduling a
pre-dismissal hearing for the next day. The letter states:
Dear Kimberly, You have been unable to report to work due to
your current medical condition since December 8, 2014.
Additionally, you have exhausted your 12 weeks of Family
The Office Technician III position is a vital position for
the smooth operation and completion of our department's
mandated responsibilities in order to fulfill the needs of
the citizens of Weld County. It is essential that the Office
Technician III position be filed on a full-time basis to
perform the essential functions of that position.
Since you are not able to perform the essential functions of
your job as an Office Technician III and we are not able to
accommodate your restrictions, a pre-dismissal hearing has
been scheduled for you on Thursday, April 16, 2015 . . . .
During this hearing, you have the right to present any
updated information regarding your medical condition as it
relates to your ability to perform the essential functions of
the Office Technician position. If you have any medical
updates from your doctor, please bring the information to the
scheduled hearing. This hearing is your opportunity to
present any relevant information which would have bearing on
you employment status.
(DSUMF ¶ 58, Ex. I.) According to Aubrey, since she was
slotted in the Recording Department as of April 15, 2015, it
was that position that Koppes was looking at to determine if
there could be an accommodation. (R-DSUMF ¶ 25.)
April 16, 2015, Aubrey's hearing took place in front of
Koppes and Russell. (DSUMF ¶ 59; R-DSUMF ¶ 3.)
During the hearing, the participants delved into the reasons
for possible termination and whether Aubrey would be able to
perform the essential functions of her position:
KOPPES: And do you have any questions with the letter?
AUBREY: No. I understand.
KOPPES: And I want to make sure that you, a hundred percent,
know it has nothing to do with your job performance at all. .
You've definitely been a standout employee for us. And so
it's - this is not that ...