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Potestio v. The Colorado State Board for Community Colleges and Occupational Education

United States District Court, D. Colorado

May 14, 2019

ALLYSA POTESTIO, Plaintiff,
v.
THE COLORADO STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kathleen M. Tafoya United States Magistrate Judge.

         This matter comes before the court on “Defendant's Motion to Dismiss the First Amended Complaint” (Doc. No. 32 [Mot.], filed November 27, 2018). Plaintiff filed her response on December 18, 2018 (Doc. No. 34 [Resp.]), and Defendant filed its reply on December 21, 2018 (Doc. No. 35 [Reply]).

         STATEMENT OF THE CASE

         Plaintiff filed this case asserting violations of the Americans with Disabilities Act (“ADA”) of 1990, 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation Act, § 29 U.S.C. § 701, et seq. (See Doc. No. 30, 1st First Am. Compl. [Am. Compl.].) Plaintiff, who is a 28-year-old former student at Pueblo Community College (“PCC”), states she has an eye defect that developed after premature birth, leaving her with only one-third retina in each eye. (Id., ¶ 13.) Plaintiff states she is legally blind and, as such, is a qualified person with a disability as defined under the ADA. (Id., ¶¶ 14, 18.)

         Plaintiff states PCC is a two-year institution for higher learning education that receives federal funding. (Id., ¶¶ 19-20.) Colleges and universities are required by Section 504 of Title II of the ADA to provide students with disabilities with appropriate academic adjustments and auxiliary aids and services necessary to afford an individual with a disability an equal opportunity to participate in the school's programs. (Id., ¶ 21.)

         Plaintiff alleges prior to being officially accepted into PCC, she was required to take the AccuPlacer Test; however, due to her visual issues, she was not able to pass the timed test on the computer, and PCC had no alternative test for Potestio to take. (Id., ¶¶ 24-25.) Rather, PCC required her take numerous remedial courses to attend the college. (Id., ¶ 25.) In the fall of 2009, Plaintiff began attending PCC with the goal of becoming a Physical Therapist Assistant (“PTA”). (Id., ¶ 23.)

         PCC has a Disability Resource Center (“DRC”) that works with students who have a documented disability. (Id., ¶ 26.) 28. The DRC assists students with disabilities, makes reasonable accommodations for them, and provides them equal access to educational opportunities offered through PCC. (Id., ¶ 28.) The DRC accepts responsibility for providing equal access to post-secondary education, the right to non-discrimination, the right to have reasonable accommodations, as well as the right to have the student's disability kept confidential. (Id., ¶ 29.) The DRC also notifies students of what the essential functions of educational and training programs are to facilitate the students' educational experience by providing reasonable accommodations, while at the same time creating the best opportunities for success and graduation in the respective programs. (Id., ¶ 30.) Plaintiff states that, from the very start of her educational journey at PCC, Plaintiff has been under a Letter of Accommodation documenting her disability, which is a requirement for working with the DRC. (Id., ¶ 31.)

         Between 2009 and 2014, Plaintiff took numerous classes that were required for PTAP. (Id., ¶ 34.) In June of 2014, Plaintiff started working with the Division of Vocational Rehabilitation (“DVR”), which assists individuals with disabilities to find work and live independently. (Id., ¶¶ 35-36.) The DVR Counselor who was assigned to assist Plaintiff advised her that she needed to check the essential functions of the Physical Therapy Assistant Program (“PTAP”) because, in her opinion, Plaintiff would not be able to meet those essential functions due to her disability. (Id., ¶¶ 37-39.) Plaintiff had already spent more than five years working towards admission into PTAP, had worked continuously with the DRC during that time, and the DRC was aware of Plaintiff's courses and her goal of becoming a PTA. (Id., ¶¶ 35-36.) Plaintiff and her parents then met with Rebecca Wasil, disability advisor of the DRC, and explained to her what they had learned from the DVR. (Id., ¶ 40.) Plaintiff alleges Ms. Wasil was completely unaware of the essential functions of PTAP. (Id., ¶ 40.) Plaintiff then contacted the department head of PTAP, Peggy Oreskovich, who stated that Plaintiff would not qualify for the program due to her visual disability. (Id., ¶ 47.)

         Following this discussion, Plaintiff inquired into the Occupational Therapy Assistant Program (“OTAP”). (Id., ¶¶ 35-36.) Plaintiff met with the head of the OTAP, Tricia Vigil, who stated that she would meet their essential functions without accommodation, and that she would “work with her.” (Id., ¶ 49.) In the fall of 2014, Plaintiff began taking prerequisites, and completing the necessary requirements for admission into OTAP. (Id., ¶ 50.) To gain acceptance into the OTAP, students must partake in an interview with the department head, Tricia Vigil, along with other faculty members and members of the OT community. (Id., ¶ 52.) This interview counts as 60% of the criteria weight that is used by the OTAP faculty interview panel in determining which students are accepted. (Id., ¶ 53.) Plaintiff's interview with the faculty interview panel lasted approximately 15 minutes. (Id., ¶ 54.) However, in the spring of 2015, Plaintiff was denied admission to the OTAP. (Id., ¶ 51.) After her denial into the program, Plaintiff emailed the department head, Tricia Vigil, to ask her what she could do to enhance her appeal as a candidate; Plaintiff never received a response. (Id., 55-56.)

         Plaintiff continued taking classes associated with OTAP, including classes related to the medical field and pediatrics, in which she wanted to specialize. (Id., ¶ 57.) Plaintiff also sought permission, after applying in 2016, to take some of the OTAP classes themselves to enhance her application. (Id., ¶ 58.) In the spring of 2016, Plaintiff again applied for entrance into the program and was again denied admission after a 15-minute interview and despite her 3.00 grade point average, good references, and volunteer experience. (Id., ¶¶ 59-61.) After her second denial into the program, Plaintiff contacted Tricia Vigil and asked to meet with her regarding her denial into the program. (Id., ¶ 62.) Tricia Vigil did meet with the Plaintiff but told Plaintiff that the reason she was denied entrance into the OTAP was due to her “energy.” (Id., ¶¶ 63-64.) Plaintiff and her mother were told by Ruth White, a Career Transfer Advisor for PCC, that the reason why she was denied entrance into the program was probably due to how she “looked at the admission panel” during her admission interview. (Id., ¶67.) Ms. White also told Plaintiff that if she did not get into the OTAP a second time, then she should not make a third attempt, that Plaintiff probably “did not have the personality they are looking for, ” and recommended that Plaintiff become a bartender or a hair dresser. (Id., ¶¶ 72-74.)

         Plaintiff and her mother also met with Bonnie Housch, Academic Excellence Advisor, and she recommended that Plaintiff practice her interviewing skills and expressed surprise that Plaintiff's interview was so short as interviews with the faculty panel typically last upwards of an hour. (Id., ¶¶ 68-69.) In addition, Ms. Housch told Plaintiff and her mother that in 2014 Bonnie Clark, DRC Coordinator, had requested copies of the essential functions for all programs, and Ms. Housch said to Plaintiff, “I assume that was due to you.” (Id., ¶ 70.)

         During the summer of 2016, after her second denial into the OTAP, Plaintiff contacted Chantal Woodyard, a disability advocate who conducts national training seminars on the A.D.A. (Id., ¶ 75-76.) Ms. Woodyard inquired as to the eligibility requirements for the OTAP. (Id., ¶ 77.) Ms. Woodyard first contacted Bonnie Clark of the DRC, who still did not know the eligibility requirements for the OTAP, so she referred Ms. Woodyard to Ms. Vigil. (Id., ¶ 78.) Plaintiff alleges after those inquiries by Ms. Woodyard, the OTAP essential functions were rewritten to change the visual ability requirements in a manner that prevents Plaintiff from applying to the OTAP a third time. (See id., ¶¶ 79-85.)

         Plaintiff also alleges Defendants have failed to provide reasonable accommodations to Plaintiff throughout her time at PCC, including failing to provide reasonable accommodations such as enlarging study materials, placing books on a CD, reading tests to Plaintiff, and replacing classroom aides who were not taking notes for Plaintiff as requested. (Id., ¶¶ 91, 93.) Plaintiff also alleges Sharon Mott, A.T. Instructor at the DRC, repeatedly made negative, intimidating, discriminatory and humiliating comments towards Plaintiff calling her “Eeyore, ” the cartoon donkey in the Winnie the Pooh series, during the Spring 2014 semester while acting as Plaintiff's classroom aide for Biology 106 and during the spring 2014 semester when she was instructor for Word Processing/Assistive Technology. (Id., ¶¶ 97, 102.) Plaintiff also alleges at some unspecified time she was excluded from participating as a volunteer to shadow one of her instructors, Mikala Caruso, who is an Occupational Therapist Assistant, after Ms. Caruso asked for volunteers. (Id., ¶111-14.)

         Plaintiff states she has been bullied, harassed, and intimidated by instructors and classroom aides during her time at PCC, which has caused her “emotional distress, mental anguish and psychic harm, including but not limited to humiliation, degradation, and depression.” (Id., 116, 118.) Plaintiff seeks declaratory and injunctive relief and money damages. (Id., Section VI. Relief Requested.)

         Defendants move to dismiss Plaintiff's case in its entirety. (See Mot.)

         STANDARDS ...


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