United States District Court, D. Colorado
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Brooke Jackson United States District Judge
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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
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.” Id. at
¶80. Ms. Hock appealed her termination. Id. at
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.
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
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.
SUMMARY JUDGMENT STANDARD OF REVIEW
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