United States District Court, D. Colorado
ORDER ON DEFENDANT'S MOTION FOR SUMMARY
Brooke Jackson United States District Judge
matter is before the Court on defendant Valley View Hospital
(“VVH”)'s motion for summary judgment. ECF
No. 30. For the reasons stated herein, the motion is DENIED.
case arises out of plaintiff Ms. Pena-Flores' former
employment with VVH, a Colorado nonprofit hospital, and
VVH's alleged discrimination against Ms. Pena-Flores due
to an injury she sustained on the job. ECF No. 1 ¶ 3.
Ms. Pena-Flores brings claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§
12111-12117, and the Colorado Anti-Discrimination Act
(“CADA”), Colo. Rev. Stat. §§
24-34-401, et. seq.
hired Ms. Pena-Flores in January 2016 as a dietary aide in
the Nutrition Services Department. ECF No. 31 ¶ 1.
Dietary aides rotate among various tasks including menu
coordination, tray passing, floor stocking, and cashier
duties. Id. Menu coordination involves obtaining
orders from patients, ensuring orders comply with the
patients' doctors' food instructions, and overseeing
food preparation. Id. ¶ 2. Tray passing
involves preparing patients' meal trays based on
information provided by the menu coordinators and using carts
to deliver the trays to patients. Id. ¶ 3.
Floor stocking involves loading supplies-including
refrigerated food, napkins, and other products-onto a wheeled
cart and pushing the cart around the hospital. Id.
to Ms. Pena-Flores' injury, she made some mistakes while
working as a menu coordinator. On at least one occasion in
March 2016, Ms. Pena-Flores provided food of an incorrect
texture to a patient. Id. ¶ 7; ECF No. 31-1
¶¶ 5-6. VVH asserts that this occurred three times,
although Ms. Pena-Flores claims that this occurred only once
and only as a result of incorrect information from a
coworker. ECF No. 31-1 ¶¶ 5-6. Ms. Pena-Flores was
warned “to be more careful” regarding
patients' dietary restrictions. ECF No. 30 ¶ 7. On
approximately April 8, 2016 Ms. Pena-Flores took a photograph
on her personal cell phone of a patient's dietary order,
which contained the patient's name and date of birth.
Id. ¶ 8. Ms. Pena-Flores was instructed not to
have patient information on her personal phone. Id.
On one occasion prior to mid-June 2016, Kitchen Chef Kurt
Hoeke was unable to find Ms. Pena-Flores and reminded her
that she needed to be in the kitchen by 7:00 a.m.
Id. ¶ 9.
2016 Ms. Pena-Flores suffered an injury to her right wrist
while pulling the stocking cart. ECF No. 1 ¶¶ 20,
22; ECF No. 30 ¶ 17. On June 14, 2016 Ms.
Pena-Flores' healthcare provider proscribed her a
twenty-pound lift limitation on her right arm. ECF No. 30
¶ 18. Ms. Pena-Flores provided this work restriction to
Elisa Scarbrough-the Patient Services Supervisor during the
relevant time-and Lynn Morrison-the Interim Director of Food
and Nutrition Services. Id. ¶¶ 6, 18.
15, 2016, Ms. Pena-Flores experienced pain after passing
trays and using more than twenty pounds of force with her
right arm to move a patient. ECF No. 30 ¶ 19; ECF No. 31
¶ 16. Ms. Pena-Flores also provided the incorrect food
trays to two patients that day. ECF No. 30 ¶ 19. Later
that same day Ms. Pena-Flores met with Ms. Morrison and Amy
Larsen-the Employee Relations Specialist-to discuss her pain.
Id. ¶ 20. Ms. Larsen told Ms. Pena-Flores to
take the rest of the day off and to see her healthcare
provider. ECF No. 30 ¶ 20.
this incident, Ms. Pena-Flores placed food on trays but did
not push the food tray cart. Id. ¶ 21. She also
stocked fewer items and used her left hand to maneuver the
stocking cart and take products out of boxes. Id.
¶ 22. On June 23, 2016 VVH provided Ms. Pena-Flores with
a work flow document that limited her to certain duties
within her work restrictions. Id. ¶ 23. The
work flow document also limited her work hours, although Ms.
Pena-Flores denies that this accommodation was either
requested or necessary. Id.; ECF No. 31 ¶ 21.
Pena-Flores' healthcare provider updated her work
restrictions twice in July 2016. ECF No. 30 ¶ 31. On
July 10 her healthcare provider instructed Ms. Pena-Flores
not to use her right arm at all. Id. Two weeks
later, on July 26, her healthcare provider instructed Ms.
Pena-Flores not to lift or exert force of more than two
pounds with her right arm. Id.
Pena-Flores testified that she was never expressly instructed
to do a task that violated these updated work restrictions.
ECF No. 30 ¶¶ 26, 31. Yet she also testified that
on approximately four or five occasions her supervisors
counseled or scolded her for failing to finish tasks in a
timely manner. ECF No. 30 ¶ 32; ECF No. 31 ¶ 29.
Ms. Pena-Flores does not remember the dates of these
occasions, except that they occurred after her injury. ECF
No. 31-2 at 58:2-59:20. Additionally, on one occasion Mr.
Hoeke asked Ms. Pena-Flores to pass trays and push the cart,
which Ms. Pena-Flores believed exceeded her work
restrictions. ECF No. 30 ¶¶ 9, 28. Ms. Pena-Flores
did not do so because another employee completed the task for
her. ECF No. 31 ¶ 25. Ms. Pena-Flores was not
disciplined for this. ECF No. 30 ¶ 28.
11, 2016 Ms. Pena-Flores met with Ms. Larsen to discuss her
concern that pressure from her supervisors to work faster was
forcing her to violate her work restrictions. ECF No. 31 at
7. Ms. Pena-Flores believes that Ms. Larsen never
investigated these issues, and VVH does not dispute this
exact timeline of subsequent changes to Ms. Pena-Flores'
work flow duties thereafter is unclear. However, the parties
agree that “[t]oward the end of her employment, ”
Ms. Pena-Flores' assigned tasks included wiping down
tables with her left hand, folding towels, making lists of
items that needed to be stocked, placing food on trays,
stocking items in the cafeteria, setting out dishes, and
other similar tasks. ECF No. 30 ¶ 33; ECF No. 31 ¶
39. The parties dispute Ms. Pena-Flores' ability to
complete these tasks. Ms. Larsen testified that Ms.
Pena-Flores told her that Ms. Pena-Flores “could do
nothing at the end of her time at [VVH], that she was not
capable or able to do any job that [they] offered” her.
ECF No. 30-6 at 111:17-19. Claudia Gredig-the Employee Health
and Worker's Compensation Case Manager-also confirmed
that Ms. Pena-Flores told her and Ms. Larsen that
“there were no job duties [Ms. Pena-Flores] could
perform without experiencing pain in her injured or
non-injured hand or arm.” ECF No. 30 ¶ 6; ECF No.
30-4 ¶ 14.
Pena-Flores states that she never told supervisors that her
job duties caused her any pain in her uninjured left arm or
that she could not perform her assigned tasks. ECF No. 31-1
¶ 11. She claims that she could use her left arm
normally, and that she found ways to perform her assigned
tasks without violating her restrictions. Id.
Ms. Pena-Flores believes that there were other duties, beyond
those that were assigned to her towards the end of her
employment, that she was also able to perform. She believes
she could perform the duties related to the cashier shifts
and the menu coordinator shifts. ECF No. 30 ¶ 36.
Although Ms. Pena-Flores was not assigned cashier or menu
coordinator duties towards the end of her employment, as a
dietary aide she had been trained in these duties and had
performed them previously. Id. Ms. Pena-Flores never
expressly asked to be reassigned solely to the cashier or the
menu coordinator positions. ECF No. 30-2 at 138:22- 139:9.
However, she did suggest to Ms. Larsen that she “could
do [the cashier position] well.” Id. Ms.
Pena-Flores also claims that she asked Silvia Vasquez, a
cafeteria assistant and coworker to Ms. Pena-Flores, to ask
Randy Dombrowski, the manager of the cashier area, about
moving Ms. Pena-Flores to the cashier position. Id.;
ECF No. 30-8 ¶ 1. VVH denies that Ms. Pena-Flores ever
requested this of Ms. Vasquez. ECF No. 32 ¶ 36.
terminated Ms. Pena-Flores' employment on August 3, 2016.
ECF No. 30 ¶ 37. The termination summary indicated that
Ms. Pena-Flores was terminated because she was “not
performing the job duties that she was hired to do.”
ECF No. 31 at 7. The summary also indicated that she would be
eligible for rehire once cleared for full duty by her doctor.
Id. Ms. Pena-Flores testified that she was told that
she was terminated “because [she] wasn't performing
[her] job the way that [she] did when [she] started.”
Id. VVH's motion asserts that VVH terminated Ms.
Pena-Flores because she “could not perform the
essential functions of her position with or without
reasonable accommodations and no other position for which Ms.
Pena-Flores was qualified was available.” Id.
her termination, Ms. Pena-Flores did not apply for any jobs
for the remainder of 2016. ECF No. 30 ¶ 38. In a
doctor's note dated January 27, 2017, Ms.
Pena-Flores' healthcare provider wrote that she had
“[n]o use of the right hand.” ECF No. 32-5 at
PLAINTIFF 000688. The provider also wrote that Ms.
Pena-Flores told him that she “cannot really hold even
a cup of tea, cannot do her job, ” and was
“having increasing pain” despite using a wrist
March 2017 Ms. Pena-Flores was in communication with a family
about working as a caregiver for a family member, but this
fell through. ECF No. 30-10 at 5. Beginning on April 25, 2017
she worked at Culver's of Glenwood Springs for about six
weeks before quitting to undergo surgery on her right wrist.
Id. at 3-4. She applied for five additional jobs
between July 2017 and December 2017. Id. at 4-5. She
did not apply for any jobs in 2018. ECF No. 30 ¶ 40. She
testified that this was because it would be difficult to
balance work with her doctor's appointments and because
her attorney had advised her to wait. ECF No. 30-3 at
February 7, 2018 she applied for assistance with the Colorado
Department of Labor and Employment's Division of
Vocational Rehabilitation. ECF No. 30-7 at PLAINTIFF 3202.
After her case closed (presumably due to inactivity) she
reapplied on November 30, 2018. Id. In 2019, she
applied to five jobs with the help of that agency, and an
additional two jobs on her own. ECF No. 30-10 at 4-6. She
worked at Creperie Du Village in Aspen for seven days in
January 2019 before quitting due to wrist pain. Id.
at 5. In February 2019 she applied to, and subsequently was
offered, a job as cashier at Marshall's in Glenwood
Springs. Id. at 6. The most recent information that
Ms. Pena-Flores has provided about her job status is that as
of February 28, 2019, she was in training for the cashier
position pending the store's opening. Id. at 6.
Neither party has provided further information about Ms.
Pena-Flores' current job status.
January 24, 2017 Ms. Pena-Flores filed a charge of
discrimination with the Colorado Civil Rights Division. ECF
No. 1 ¶ 9. Pursuant to agreement between the Colorado
Civil Rights Division and the Equal Employment Opportunity
Commission (“EEOC”), Ms. Pena-Flores' charge
was also concurrently filed with the EEOC. Id.