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Hock v. Mesa County Valley School District 51

United States District Court, D. Colorado

May 13, 2019

DEBRA HOCK, Plaintiff,


          R. Brooke Jackson United States District Judge

         In this disability discrimination lawsuit, defendant Mesa County Valley School District 51 (“District 51”) moves for summary judgment. ECF No. 30. For the reasons stated herein, the motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         Ms. Hock worked for District 51 from 1995 until her termination in May 2016. First Amended Complaint (“complaint”), ECF No. 11 at ¶¶5, 80. For the first 19 years of her tenure, she worked as a health assistant at Bookcliff Middle School. Id. at ¶¶5, 32. It is in this role and at this school that Ms. Hock sustained her first work-related injury to her left knee. See Id. at ¶¶10-20. On May 7, 2014 Ms. Hock tested a diabetic student's blood sugar levels and found the levels to be too high. Id. at ¶7. Due to school policy, Ms. Hock could not treat the student without permission from either the school's registered nurse or the student's parent. Id. at ¶8. While Ms. Hock waited for guidance, the school contacted the student's mother. Id. at ¶10. Apparently unhappy with the situation, the student's mother “stormed into Ms. Hock's office yelling” and “proceeded to run into/slam into Ms. Hock.” Id. at ¶¶10-11. Ms. Hock escaped from her office, and the school notified the Grand Junction police. Id. at ¶¶12-17. Immediately following the incident and in the following days, Ms. Hock indicated that she wished to press charges. Id. at ¶¶15-18. However, the on-scene officer and Bookcliff principal dissuaded her from taking such action. Id.

         A few days later, the diabetic student's mother met with unnamed school officials. Id. at ¶22. Although the contents of the meeting were unknown to Ms. Hock, the principal emailed Ms. Hock about the meeting and mentioned that there would be no further issues with this parent. Id. Ms. Hock asked the principal whether the parent would face consequence for her assault. Id. at ¶23. The principal responded, “we'll figure it out over the summer.” Id. Angered by this response, Ms. Hock received permission to go home for the day. Id. While at home, Ms. Hock remembered that she had an appointment the following morning and would need to miss another day of work. Id. at ¶25. She emailed the registered nurse and received permission to miss work the next day. Id.

         When Ms. Hock returned to work on May 15, 2014 after missing these two days, the principal and vice principal presented her with a FRISK notice, which is a written reprimand for unsatisfactory performance. Id. at ¶26. The notice cited the missed days of work as the primary reason for the reprimand. Id. at ¶27. Ms. Hock initially refused to sign the notice, but she signed it the following day after meeting with a District 51 human resource (“HR”) specialist. Id. at ¶¶28-30. She also submitted a rebuttal to the notice. Id. at ¶30. Notwithstanding the FRISK notice incident, Ms. Hock believed she would be assigned the same position at Bookcliff Middle School the following school year. Id. at ¶¶31, 36.

         However, in July 2014, District 51 notified Ms. Hock that she would be transferred to Pear Park Elementary School for the 2014-2015 school year to hold the dual positions of kindergarten classroom paraprofessional and clerical office employee. Id. at ¶¶32, 36. The stated reason for the transfer was to “keep [her] safe, ” which Ms. Hock believed was in reference to the assaultive parent. Id. at ¶32. Although this transfer was temporary, it was against her will. Id. at ¶36. Moreover, Ms. Hock raised concerns that her physical limitations-she could not stand or walk for more than an hour and she was not able to climb, squat, kneel, or crawl- prevented her from performing the physical requirements of a kindergarten classroom paraprofessional. Id. at ¶¶33, 39.

         According to Ms. Hock, District 51 assigned her to these two positions because it felt that it “could temporarily accommodate her with the work restrictions she had placed on her by her physician.” Id. at ¶38. Ms. Hock remained concerned that she could not fulfil the position of kindergarten classroom paraprofessional due to her restrictions, but she accepted the position at Pear Park Elementary anyway and started work in the fall because District 51 assured her that her needs would be accommodated. Id. at ¶¶39-40. During this time, Ms. Hock continued to see her physician and keep District 51 and the Pear Park principal informed of her work restrictions due to her left knee injury. Id. at ¶¶41-42.

         Toward the end of the 2014-2015 school year, the Pear Park principal, Dan Bunnell, informed Ms. Hock that he planned to eliminate the hours that she was working as a clerical office employee for the principal, but he allowed her to continue to work a half-day position as a kindergarten classroom paraprofessional. Id. at ¶47. Around this same time, Ms. Hock received a performance review from the principal. Id. at ¶48. The principal rated her performance as “satisfactory” or “proficient” in all but two aspects. Id. She received a FRISK notice for these two negative aspects, which were unspecified in the complaint. Id. at ¶49. Finally, Ms. Hock's physician notified her in May 2015 that she would eventually need a knee replacement. Id. at ¶51.

         In the summer of 2015, Ms. Hock learned that she would be placed back at Pear Park Elementary. Id. at ¶54. District 51 planned to reassign her to the kindergarten classroom in the morning, but her afternoon position was yet to be determined. Id. Eventually, the principal informed Ms. Hock that a special education (“SpEd”) paraprofessional position was available, and after a discussion about her physical restrictions, Ms. Hock accepted the position for the 2015-2016 school year. Id. at ¶¶55-56.

         On August 5, 2015, the second day of school, Ms. Hock reinjured her knee when she chased after a special needs student who was running toward the parking lot. Id. at ¶57. She completed an injury report and sought workers' compensation benefits. Id. at ¶58. District 51 denied the workers' compensation claim because it determined that she simply reaggravated a preexisting injury. Id. at ¶¶59-60.

         Following the injury, Ms. Hock visited her primary care physician and remained out of work for a month. Id. at ¶61. She returned to work on September 2, 2015 with the approval of her physician. Id. at ¶¶61-62. After providing the principal a list of physical restrictions, the principal sent her home because there was nothing that she could do with the physician-imposed restrictions. Id. The following day, a human resources employee for the District emailed Ms. Hock asking her to provide an updated doctor's note on her anticipated return date. Id. at ¶64. Although not explicitly stated in the complaint, it appears that she did not provide this information because “she had provided a doctor's note on September 2, 2015” which stated that her knee injury would last approximately one to three months. Id.

         On September 25, 2015 Ms. Hock emailed the HR department to ask when she would be permitted to return to work. Id. at ¶65. An HR employee responded that it would be happy to discuss a return date once she received notice from plaintiff's physician that she could return to work. Id. Another month went by. On October 20, 2015 an HR representative contacted Ms. Hock asking for an approximate return-to-work date. Id. at ¶67. She responded on October 26 and inquired what further information she needed to provide that her September 2 doctor's note failed to provide. Id. at ¶68. Nonetheless, Ms. Hock saw her physician on October 27 and obtained permission to return to work that day with her same physical restrictions: no kneeling, no running, no climbing, no squatting, no stairs, and no lifting over ten pounds. Id. at ¶69. She provided the note to the HR department. Id. at ¶70.

         In response to the newest doctor's note, on November 6, 2015 the District's executive director of HR wrote in a letter that it had determined that Ms. Hock was unable to perform the essential functions of a SpEd paraprofessional, and that the District could not accommodate her physical limitations. Id. at ¶71. She also received a medical questionnaire for her physician to complete. Id. at ¶72. While she objected to the questionnaire because it asked about any mental impairments that she may have, the complaint never alleges that she voiced her objection to District 51. Id. Specifically, the question she opposed asked, “Describe any physical or mental impairments that would affect Ms. Hock's ability to perform the job of Special Education Paraprofessional.” ECF No. 35-12 at 1. The complaint goes on to describe a few emails between Ms. Hock and the District regarding her leave benefits, but there are no alleged communications regarding the status of her employment until she emailed the District 51 Superintendent on April 5, 2016. See ECF No. 11 at ¶¶73-75.

         On April 15, 2016 an HR representative responded to her April 5 email stating, “Ms. Hock had been recommended for dismissal from her employment with District 51.” Id. at ¶76. In May, per the District's policy, she met with HR personnel to discuss her pending termination. Id. at ¶¶78-79. Despite her explanation about her knee injury, on May 27, 2016, “Ms. Hock received correspondence stating that her employment with District 51 was going to be terminated since she had failed to appear for work at Pear Park Elementary, that she had not provided requested information to District 51, and that she had made two (2) unsubstantiated workers' compensation claims.”[1] Id. at ¶80. Ms. Hock appealed her termination. Id. at ¶82

         District 51 granted her appeal request, and it retained Michael Santo, a local Grand Junction attorney, to act as the hearing officer. Id. at ¶83. Ms. Hock opposed Mr. Santo's appointment because he was previously married to a member of District 51's HR team who had personally worked with Ms. Hock during her employment issues. Id. at ¶84. Unlike the questionnaire, she made her objections known to District 51, both before and at the start of the hearing. Id. at ¶¶85-86. However, neither District 51 nor Mr. Santo granted her request for recusal. Id. at ¶86.

         The hearing took two days, starting on August 16, 2016 and concluding on August 24. Id. at ¶¶86-87. Little information is alleged about the hearing except that the Pear Park principal testified. According to plaintiff, the principal stated that “he was aware that Ms. Hock needed to have a knee replacement, but despite this, he placed her into the SPED Paraprofessional position, which was a position that had very physically demanding requirements.” Id. at ¶88; Plaintiff Affidavit, ECF No. 35-1 at ¶83. On September 2, 2016 Mr. Santo issued his findings in which he affirmed Ms. Hock's dismissal. ECF No. 11 at ¶89. Following the decision, Ms. Hock requested the audio recording of the hearing, but District 51 allegedly denied her request. Id. at ¶90.

         Ms. Hock filed her charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on September 2, 2016. Id. at ¶92. But on July 28, 2017 the EEOC closed its file on her case after finding the charge untimely. Id. at ¶93; Ex. O, ECF No. 39-15. She received a right to sue letter with her notice of closure. See Ex. O, ECF No. 39-15. Ms. Hock then filed her complaint in the district court on September 29, 2017, where she alleged three claims: (1) disability discrimination under the American with Disabilities Act (“ADA”); (2) failure to accommodate under the ADA; and (3) violation of the Rehabilitation Act.


         The Court may grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden to show that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The nonmoving party must “designate specific facts showing that there is a genuine issue for trial.” Id. at 324. A fact is material “if under the substantive law it is essential to the proper disposition of the claim.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court will examine the factual record and make reasonable inferences therefrom in the light most favorable to the party opposing summary judgment. Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994).

         III. ...

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