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Pena-Flores v. Valley View Hospital Association

United States District Court, D. Colorado

January 13, 2020



          R. Brooke Jackson United States District Judge

         This 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.

         I. BACKGROUND

         This 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.

         VVH 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. ¶ 5.

         Prior 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.

         In June 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.

         On June 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.

         Following 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.

         Ms. 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.

         Ms. 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.

         On July 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 belief. Id.

         The 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.

         Yet Ms. 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. ¶¶ 10-11.

         Additionally, 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.

         VVH 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.

         After 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 brace. Id.

         In 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 30:3-31:17.

         On 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.

         Procedural Background

         On 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. Neither ...

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