Aubrey v. Koppes

          ORDER

          RAYMOND P. MOORE, UNITED STATES DISTRICT JUDGE

         This action-by a former office technician against the county^[1] 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 County's motion.

         I. BACKGROUND

         The Weld County Clerk and Recorder's Office comprises three departments: Recording, Motor Vehicle, and Elections. (R-DSUMF ¶ 2.)^[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.)

         A. Aubrey's Medical Condition and Time Away from Work

         In late 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.)

         Both during and after her leave, Aubrey saw several medical professionals.^[3] 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. ¶¶ 12-15.)

         Dr. 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.)

         Another 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.)

         Speech 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.)

         B. Aubrey's Termination

         During 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.)^[4]

         Human 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.)

         Koppes 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 Medical Leave.

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.)

         On 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 ...