Chavez v. Adams County School District No. 50
Filing
32
ORDER denying 18 Motion to Dismiss by Judge R. Brooke Jackson on 3/31/16.(jdyne, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 15-cv-00411-RBJ
ROBERTA CHAVEZ,
Plaintiff,
v.
ADAMS COUNTY SCHOOL DISTRICT NO. 50,
Defendant.
ORDER
This matter is before the Court on defendant’s Motion to Dismiss, ECF No 18. For the
reasons discussed below, the motion is denied.
I.
FACTS
Plaintiff Roberta Chavez is a 58-year-old resident of Westminster, Colorado. ECF No.
17 ¶ at 4. In 1997 Ms. Chavez started working for defendant Adams County School District No.
50 (the District) as an Instructional Educational Support Professional (ESP) at the District’s
Early Childhood Center in Gregory Hill Elementary School (ECC). Id. at ¶ 14. As an ESP Ms.
Chavez assisted preschool teachers with instructing classes of three- and four-year-old children.
Id. at ¶¶ 14, 16.
Ms. Chavez alleges that multiple coworkers and supervisors discriminated against her
because of her age and disabilities while she was working for the District. At all times relevant
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to this case Ms. Chavez weighed between 290 and 320 pounds and suffered from Major
Recurrent Depression and Panic Disorder. Id. at ¶ 4. Ms. Chavez first claims that Charlene
Wright, the preschool teacher Ms. Chavez assisted during the 2011–2012 school year, made
multiple comments regarding Ms. Chavez’s weight. In December 2011 Ms. Wright told Ms.
Chavez “[y]ou don’t need to sit on the floor because it is probably too hard for you to get
yourself up.” Id. at ¶ 22. Additionally, Ms. Wright told Ms. Chavez on multiple occasions that
Ms. Chavez did not eat enough to have weight issues and therefore probably had a slow
metabolism. Id. at ¶ 23. In March 2012, while walking children to a school bus, Ms. Chavez
realized that a backpack had been forgotten and ran back inside to retrieve it. Id. Ms. Wright
followed Ms. Chavez and was unable to catch up to her. Id. She commented that “[f]or being so
big, [Ms. Chavez] sure [was] fast.” Id. Finally, in April 2012, Ms. Chavez expressed an interest
in a position at a middle school in the District, which prompted Ms. Wright to ask Ms. Chavez if
she could “do all that walking[?]” Id.
Shortly thereafter ECC Assistant Principal Tami Brungard informed Ms. Chavez that she
would not be assigned to Ms. Wright’s classroom the following school year. Id. at ¶ 28. Ms.
Brungard said that Ms. Wright’s class would consist entirely of three-year-old children, that
three-year-old children are rambunctious, and therefore, that Ms. Chavez would need to be
constantly running around and on the floor. Id. On the last day of the school year Ms. Chavez
complained to Ms. Brungard that her refusal to assign Ms. Chavez to that class constituted
discrimination, but Ms. Brungard did not respond. Id. at ¶ 30.
Ms. Chavez also alleges that Ms. Wright gave false reports to school administrators about
Ms. Chavez’s behavior. Ms. Wright and another ECC employee, Kate Beyer, reported to Ms.
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Brungard that Ms. Chavez was required to assist Ms. Wright with students in the gym and was
not doing so. Id. at ¶ 25. However, Ms. Chavez was not required to be in the gym with Ms.
Wright and the students. Id. Ms. Wright also falsely reported to ECC administrators that Ms.
Chavez stole school property and sent Ms. Wright a hostile text message. Id. at ¶¶ 26, 29.
At the end of the 2011–2012 school year Ms. Chavez asked her supervisor, Mathieu
Aubuchon, if she could transfer to another school in the District or take early retirement because
of the depression, anxiety, and stress she was experiencing as a result of the alleged
discriminatory treatment she received at ECC. Id. at ¶ 32. Mr. Aubuchon told Ms. Chavez that
he could not help her transfer or enter early retirement and suggested that she apply to another
school district. Id. Ms. Chavez also told Mr. Aubuchon and Ms. Brungard about Ms. Wright’s
comments concerning her weight and age. Id. at ¶ 27. Pursuant to the District’s NonDiscrimination Policy Mr. Aubuchon and Ms. Brungard were required to promptly forward the
report of discrimination and harassment to the District’s Compliance Officer. Id. at ¶ 34.
However, neither of them did so. Id. Consequently, on June 28, 2012 Ms. Chavez filed a charge
of age and disability discrimination with the United States Equal Employment Opportunity
Commission (EEOC) (2012 Charge). Id. at ¶ 35. The District received the 2012 Charge on July
5, 2012. Id. at ¶ 37.
Ms. Chavez claims that the District formally disciplined her multiple times during the
2012–2013 school year in retaliation for her filing of the 2012 Charge. Specifically, she alleges
that she was disciplined for exceeding her work hours in a manner inconsistent with the
District’s policy. According to the District’s policy, ESP employees are required to comply with
their assigned work hours. Id. at ¶ 41. Employees that work more than fifteen minutes beyond
3
their assigned work hours are to receive a written warning after the first violation and a
Memorandum of Understanding (MOU) after the second violation. Id. After the third violation
the District’s Human Resources Office takes action. Id.
In October 2012 Ms. Chavez was assigned to work 37.5 hours per week. Id. at ¶ 38. On
November 5, 2012 Ms. Chavez received an email from Ms. Brungard warning Ms. Chavez that
she had exceeded her hours during the week of October 29, 2012. Id. at ¶ 39. A few weeks later
Ms. Chavez received an MOU for the same incident. Id. at ¶ 40. Additionally, on March 11,
2013 Ms. Chavez received a written warning from Ms. Brungard informing Ms. Chavez that she
had exceeded work hours for the week of March 4, 2013. Id. at ¶ 46. Once again, Ms. Chavez
received a second disciplinary document, this time a “Letter of Reprimand,” for the same
instance of exceeding her hours. Id. at ¶ 47. This letter also alleged that Ms. Chavez had
exceeded her assigned work hours ten times “to date.” Id. In May 2013 Ms. Brungard informed
Ms. Chavez that she was henceforth required to use an electronic time clock to keep track of her
hours. Id. at ¶ 48. Ms. Chavez alleges that while other ESP employees also exceeded their
assigned work hours in violation of the District’s policy, none was similarly disciplined. Id.
Ms. Chavez also claims that she was forced to endure more comments about her weight
during the 2012–2013 school year. In January or February 2013 Charito Landeo, the preschool
teacher Ms. Chavez assisted that year, asked Ms. Chavez if she was able to get on top of her
husband during sex. Id. at ¶ 42. Then, in March 2013 Ms. Landeo asked Ms. Chavez how she
and her husband have sex. Id. at ¶ 44.
At the end of the 2012–2013 school year Ms. Chavez received an overall performance
rating of “Unsatisfactory.” Id. at ¶¶ 18, 20, 50. She had received a rating of “Solid Performer”
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and “Superior” in years past. Id. She alleges that her 2012–2013 rating is a misrepresentation of
her performance. Id. at ¶ 50. She believed this was in retaliation for her filing the 2012 Charge.
On July 30, 2013 Ms. Chavez timely filed another charge of discrimination with the EEOC
(2013 Charge). Id. at ¶ 8.
On February 13, 2014 the District notified Ms. Chavez that she was being involuntarily
transferred to Hodgkins Elementary School (HES). Id. at ¶ 52. The District informed Ms.
Chavez’s local union representative that Ms. Chavez was the first of many employees to be
transferred; however, no other employees were transferred. Id. She alleges that on Ms.
Chavez’s first day at HES she reported to the front office and asked where she should clock in.
Id. at ¶ 53. The front desk employee offered to clock Ms. Chavez in and took down her ID
number. Id. At the end of the school day Ms. Chavez clocked out using a computer in her
classroom. Id. at ¶ 54. However, on February 28, 2014 the District placed Ms. Chavez on paid
administrative leave for allegedly failing to clock in or out properly on her first day of work at
HES. Id. at ¶ 55. Kirk Leday, the District’s Chief Human Resources Officer, next informed Ms.
Chavez that her employment was going to be terminated. Id. at ¶ 56. Consequently, on March
13, 2014 Ms. Chavez submitted a Letter of Resignation. Id. at ¶ 57.
On April 22, 2014 Ms. Chavez filed a third charge of discrimination with the EEOC
(2014 Charge) claiming that the District had retaliated against her for filing the 2013 Charge. Id.
at ¶ 8. Then, on December 2, 2014 Ms. Chavez received a Notice of Right to Sue for the 2012,
2013 and 2014 Charges of discrimination, giving Ms. Chavez ninety days to institute a civil
action in federal court. Id. at ¶ 10. Accordingly, on February 27, 2015 Ms. Chavez filed her
Complaint with this Court. See ECF No. 1. She filed her Amended Complaint, now the
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operative complaint, on May 1, 2015. See ECF No. 17. Ms. Chavez alleges that the District
violated (1) the Age Discrimination in Employment Act (ADEA) when it subjected her to a
hostile work environment because of her age; (2) the Americans with Disabilities Act (ADA)
when it subjected her to a hostile work environment because of her disabilities; (3) the ADA
when it failed to reasonably accommodate her disabilities; (4) the ADEA, the ADA and Title VII
of the Civil Rights Act when it retaliated against Ms. Chavez for filing the 2012 Charge; and (5)
the ADEA, the ADA and Title VII of the Civil Rights Act when it retaliated against Ms. Chavez
for filing the 2013 Charge. Id. at ¶¶ 57–76. The District moves to dismiss all of Ms. Chavez’s
claims. See ECF No. 18.
II.
STANDARD OF REVIEW
To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to
state a claim to relief that is plausible on its face.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
While the Court must accept the well-pleaded allegations of the complaint as true and construe
them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th
Cir. 2002), purely conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at
681. However, so long as the plaintiff offers sufficient factual allegations such that the right to
relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g.,
Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
III.
ANALYSIS
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A. Hostile Work Environment Claims
The District argues that Ms. Chavez’s age- and disability-based hostile work environment
claims should be dismissed: (1) based on the Faragher/Ellerth defense; and (2) because the
Complaint fails to allege facts sufficient to support these claims. For the following reasons, the
Court declines to dismiss Ms. Chavez’s hostile work environment claims.
i.
The Faragher/Ellerth Defense
The District invokes the Faragher/Ellerth defense. ECF No. 18 at 5. Pursuant to the
Supreme Court’s decisions in Faragher and Ellerth, absent a “tangible employment action,” an
employer may avoid liability for harassment perpetrated by its supervisor-employee if it can
prove an affirmative defense by the preponderance of the evidence. Helm v. Kansas, 656 F.3d
1277, 1285 (10th Cir. 2011) (citing and quoting Faragher v. City of Boca Raton, 524 U.S. 775
(1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)). “The defense comprises
two necessary elements: (a) that the employer exercised reasonable care to prevent and correct
promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably
failed to take advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise.” Id. (internal quotations omitted). This first element “imposes two
distinct requirements on an employer: (1) the employer must have exercised reasonable care to
prevent [harassment] and (2) the employer must have exercised reasonable care to correct
promptly any [harassment] that occurred.” Id. at 1288.
Regarding the first element’s first requirement, the mere existence of the District’s antidiscrimination policy “does not constitute an adequate preventative measure[.]” Id. Rather, the
District must also prove that it “disseminate[d] the policy.” Id. Technically, the District has not
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alleged that it disseminated its anti-discrimination policy. But assuming without deciding that it
did disseminate the policy, the Court finds that the District fails to allege the second requirement
that it “exercised reasonable care to correct promptly any [harassment] that occurred.” Id. “[I]n
order to establish that [the District] took proper action to correct harassment, [it must] show that
it acted reasonably promptly on [the] complaint when it was given proper notice of [the]
allegations as required under its complaint procedures.” Id. at 1290 (internal quotations
omitted). The District’s duty to take corrective action was triggered when it received “proper
notice of [the] harassment complaint.” Id. The District argues that this duty was not triggered
because it did not receive proper notice of Ms. Chavez’s complaints. 1 I disagree. The District
was notified about Ms. Chavez’s grievances because she filed three EEOC Complaints, and at
least one (and presumably all) of her Charges were provided to the District.
Because the District has failed to allege the first element of the Faragher/Ellerth defense,
the Court need not address the second element of the defense. For the reasons discussed above,
the Court declines to dismiss Ms. Chavez’s hostile work environment claims based on the
Faragher/Ellerth defense.
ii.
Failure to State a Hostile Work Environment Claim
1
Specifically, defendant argues that it did not receive proper notice of Ms. Chavez’s complaint because
she reported her complaints to employees that “were complicit in the hostile work environment.” ECF
No. 14 at 6. However, the case the District cites in support of that argument is distinguishable from the
present case. In Chapman the plaintiff did not file a charge with the EEOC. See Chapman v. Carmike
Cinemas, 307 Fed. Appx. 164, 174 (10th Cir. 2009).
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The District also claims that the Complaint fails to state an age- or disability-based
hostile work environment claim. 2 ECF No. 18 at 6. To establish a hostile work environment
claim, Ms. Chavez must show: “(1) that she was discriminated against because of her [age or
disabilities]; and (2) that the discrimination was sufficiently severe or pervasive such that it
altered the terms or conditions of her employment and created an abusive working environment.”
Medina v. Income Support Div., 413 F.3d 1131, 1134 (10th Cir. 2005). Courts determine
“whether a working environment is sufficiently hostile or abusive” by “examin[ing] all the
circumstances, including: (1) the frequency of the discriminatory conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether the conduct unreasonably interferes with the employee’s work
performance. Mackenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005).
Ms. Chavez has alleged facts sufficient to support her age- and disability-based hostile
work environment claims. First, several of Ms. Wright and Ms. Landeo’s comments
unequivocally referenced Ms. Chavez’s age and/or disabilities. See ECF No. 17 at ¶¶ 23–24, 42,
44. For example, Ms. Wright stated to Ms. Chavez, “You don’t eat much to have weight issues”
and suggested that Ms. Chavez “probably [had] a slow metabolism.” Id. at ¶ 23. Second, Ms.
Wright’s comments doubting Ms. Chavez’s physical abilities, such as whether she was able to
get off the floor, walk long distances, or “run[ ] around” with young children could also be
2
The Court agrees with the District that Mr. Aubuchon’s comment prior to the 2006–2007 school year
asking a 21-year-old teacher whether working with Ms. Chavez would be like “bossing her mother
around” is not sufficiently related to the other allegedly discriminatory conduct to constitute “part of the
same actionable hostile work environment practice.” See Duncan v. Manager, Dept. of Safety, City &
Cnty. of Denver, 397 F.3d 1300, 1308 (10th Cir. 2005) (internal quotations omitted) (“a series of alleged
events comprises the same hostile environment where the pre- and post-limitations period incidents
involve[d] the same type of employment actions, occurred relatively frequently, and were perpetrated by
the same managers”).
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related to Ms. Chavez’s age or disabilities. See id. at ¶¶ 22, 27, 28. Third, given that Ms. Wright
had previously made comments explicitly relating to Ms. Chavez’s age or disabilities, it is
reasonable to infer that the subsequent false allegations against Ms. Chavez were similarly
motivated. See id. at ¶¶ 25–26, 29.
Additionally, I disagree with the District’s contention that Ms. Chavez hasn’t sufficiently
alleged that the harassment was pervasive. The District contends that Ms. Chavez’s co-workers’
acts and comments were isolated, unrelated events undertaken by different actors. See ECF No.
18 at 7–8. While a “steady barrage of opprobrious [discriminatory] comment[s]” supports a
hostile work environment claim, “[c]asual comments, or [ ] sporadic conversation” does not.
Hicks v. Gates Rubber Co., 833 F.2d 1406, 1412 (10th Cir. 1987). However, this is not a case in
which the plaintiff alleges only one or two isolated incidences of discriminatory conduct. See
Smith v. Northwest Fin. Acceptance, Inc., 129 F.3d 1408, 1414–15 (10th Cir. 1997)
(distinguishing a case of pervasive harassment in which the plaintiff “presented evidence of [ ]
six statements made . . . over her twenty-three month employment” from other Tenth Circuit
cases involving only one or two incidents of harassment). Rather, Ms. Chavez has identified at
least ten incidents that could support an inference that she was discriminated against. See ECF
No. 17 at ¶¶ 22–29, 42, 44. The alleged perpetrators are a handful of co-workers who worked
closely together and even jointly participated in the discriminatory conduct at times. Further,
many of these incidents took place within weeks of each other and were never more than a few
months apart. Therefore, the allegations in the Complaint support the inference that the behavior
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of Ms. Chavez’s co-workers was sufficiently pervasive such that it altered the terms or
conditions of her employment and created an abusive working environment. 3
In sum, Ms. Chavez has alleged facts sufficient to support her age- and disability-based
hostile work environment claims.
B. Failure to Accommodate Claim
The District argues that Ms. Chavez’s failure to accommodate claim should be dismissed
because: (1) Ms. Chavez failed to exhaust her administrative remedies; and (2) the facts in the
Complaint do not support the inference that the District failed to accommodate Ms. Chavez’s
disabilities. For the reasons discussed below, the Court declines to dismiss this claim.
i.
Failure to Exhaust
The District first argues that Ms. Chavez failed to exhaust her administrative remedies for
her failure to accommodate claim. ECF No. 18 at 8–9. “Title I of the ADA requires a plaintiff
to exhaust her administrative remedies before filing suit.” Jones v. United Parcel Serv., Inc., 502
F.3d 1176, 1183 (10th Cir. 2007). “In the Tenth Circuit, exhaustion of administrative remedies
is a jurisdictional prerequisite to suit.” Id. The Tenth Circuit uses a two-step inquiry to assess
exhaustion, which requires: (1) determining whether the plaintiff has filed a charge of
discrimination with the EEOC; and (2) examining “the scope of the allegations raised in the
EEOC charge.” Id. at 1183, 1186. The second step is necessary because “[a] plaintiff’s claim in
federal court is generally limited by the scope of the administrative investigation that can
reasonably be expected to follow the charge of discrimination.” Mackenzie, 414 F.3d at 1274.
3
The test for whether a hostile work environment claim exists “is a disjunctive one, requiring that the
harassing conduct be sufficiently pervasive or sufficiently severe to alter the terms, conditions, or
privileges of Plaintiff's employment.” Smith, 129 F.3d at 1413. Therefore, the Court need not decide
whether the conduct was also “severe.”
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Thus, “the charge must contain facts concerning the discriminatory . . . actions underlying each
claim.” Jones, 502 F.3d at 1186. However, the Tenth Circuit “liberally construe[s] charges filed
with the EEOC in determining whether administrative remedies have been exhausted as to a
particular claim.” Id.
The District argues that the 2012 Charge “lacked any facts pertaining to a requested
accommodation or the denial thereof” and thus fails to satisfy the second step of the two-step
inquiry. See Jones, 502 F.3d at 1186; see also E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028,
1049 (10th Cir. 2011) (“an employer’s duty to provide reasonable accommodations . . . is
triggered” when an employee makes a request that gives the employer notice of “the employee’s
desire for accommodations for [their] disability.”). I disagree. The 2012 Charge indicates that
the District was “aware of [Ms. Chavez’s] disabilities” and that it “told [Ms. Chavez] to apply at
another school district.” ECF No. 18 Ex. D. It also indicates that Ms. Chavez felt she was
“being forced out of the school/[her] position.” Id. The 2012 Charge reflects the allegations in
the Complaint that are the basis for Ms. Chavez’s failure to accommodate claim. See ECF No.
17 at ¶¶ 32, 68. Additionally, the Complaint alleges that Ms. Chavez requested that Mr.
Aubuchon assist her in transferring or entering early retirement due to her disabilities. However,
Mr. Aubuchon denied her request and merely suggested that she apply to another school district.
Therefore, the Court concludes that the 2012 Charge contained facts concerning the
discriminatory actions underlying the failure to accommodate claim, and the scope of the
subsequent EEOC investigation could reasonably be expected to include an inquiry into whether
the District failed to accommodate Ms. Chavez’s disabilities. Consequently, Ms. Chavez has
exhausted her administrative remedies.
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ii.
Failure to State a Claim
Alternatively, the District argues that this claim must be dismissed because the Complaint
does not plausibly allege that the District failed to accommodate Ms. Chavez’s disabilities by
denying her request to transfer to another school or take early retirement. See ECF No. 18 at 9.
Under the ADA, an employer discriminates against an employee by failing to “mak[e]
reasonable accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is . . . an employee.” C.R. England, Inc., 644 F.3d at
1048; see also 42 U.S.C. § 12112(b)(5)(A). The ADA’s definition of “reasonable
accommodation” includes “reassignment to a vacant position.” C.R. England, 644 F.3d at 1048;
see also 42 U.S.C. § 12111(9)(A)–(B). “To facilitate the reasonable accommodation, the federal
regulations implementing the ADA envision an interactive process that requires participation by
both parties.” Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir. 2004); see also 29
C.F.R. § 1630.2(o)(3). However, “an employer’s duty to provide reasonable accommodations
[and] participate in the interactive process” is only “triggered” once an employee notifies the
employer of the employee’s disability and their “desire for accommodations for that disability.”
C.R. England, 644 F.3d at 1049 (internal quotations omitted).
In the present case, Ms. Chavez alleges that she provided the District with such notice
when she “asked Mr. Aubuchon if she could transfer to another school in the District or take
early retirement because of depression, anxiety, and stress she was experiencing as a result of
[the alleged harassment] at ECC.” ECF No. 17 ¶ 32; see also ECF No. 21 at 7. The District
argues that this notice was deficient because Ms. Chavez did not tell Mr. Aubuchon that her
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depression, anxiety and stress “rose to the level of a disability or that she was limited in any way
by that disability.” ECF No. 18 at 10. I disagree.
The allegations in the Complaint—that Ms. Chavez was suffering from depression,
anxiety and stress—support the inference that Ms. Chavez was disabled within the meaning of
the ADA. See 42 U.S.C. § 12102(1)(A) (“The term ‘disability’ means . . . a physical or mental
impairment that substantially limits one or more major life activities.”). Furthermore, Ms.
Chavez communicated that she wished to be transferred or take early retirement because of her
depression, anxiety and stress, in effect notifying the District of her disabilities and desire for
accommodations. Therefore, the notice was sufficient to trigger the District’s duty to provide
reasonable accommodations and participate in the interactive process.
The Complaint also alleges that Mr. Aubuchon did not take reasonable steps to reassign
Ms. Chavez or engage in the interactive process. Mr. Aubuchon did not engage in a dialogue
with Ms. Chavez to determine the precise limitations resulting from her disabilities or what
positions might accommodate these limitations. Instead, he stated that he could not help Ms.
Chavez and suggested that she apply to a different school district. While the District may have
found that a reassignment was not reasonable after engaging in the interactive process, it was
required to make a reasonable, good-faith effort to accommodate Ms. Chavez.
Contrary to the District’s contention, the Court does not consider Ms. Chavez to have
requested a transfer merely to avoid working with certain coworkers. See ECF No. 18 at 9–10.
Ms. Chavez alleges to have requested a transfer because of her depression, anxiety, and stress,
which happened to be caused by the treatment she was subjected to in her current work
environment. The Court also disagrees with defendant’s contention that its transfer of Ms.
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Chavez nearly two years after her request undermines the allegation that it failed to
accommodate her disabilities. See id.; See Albert, 356 F.3d at 1252 (noting that if a vacant
position is not currently available, an employer “must take reasonable steps to reassign” an
employee to a position that “will become vacant in the fairly immediate future.”) (internal
quotations omitted) (emphasis added). The District unilaterally chose to transfer Ms. Chavez
without engaging in any interactive dialogue, and it is not clear that the new position at HES
accommodated her disabilities.
Finally, the District argues that the failure to accommodate claim must be dismissed
notwithstanding the District’s failure to participate in the interactive process because Ms. Chavez
failed to allege that a reasonable accommodation, such as a vacant position, was available. ECF
No. 18 at 10; see also ECF No. 24 at 3. It is true that “[e]ven if an employer fails to fulfill its
interactive obligations to help secure a reasonable accommodation, the plaintiff will not be
entitled to recovery unless she can also show that a reasonable accommodation was possible.”
Hannagir v. Utah Dept. of Corrections, 587 F.3d 1255, 1265 (10th Cir. 2009) (internal
quotations omitted). However, at the motion to dismiss stage “the nature and specificity of the
allegations required to state a plausible claim will vary based on context,” Pueblo of Jemez v.
U.S., 790 F.3d 1143, 1172 (10th Cir. 2016), “requir[ing] the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at 679. Common sense dictates that Ms.
Chavez’s failure to accommodate claim should not be dismissed even though it fails to cite
specific facts proving that a reasonable accommodation was available. The District was, and still
is, in a better position to determine what openings were available when Ms. Chavez requested to
be transferred. The District declined to share this information with Ms. Chavez when it refused
15
to engage in the interactive process. Therefore, Ms. Chavez was not in a position to include
specific facts in her Complaint regarding what reasonable accommodations were available. The
Court expects that discovery might lead to more information concerning this issue.
Considering the foregoing, the allegations in the Complaint support the inference that the
District failed to accommodate Ms. Chavez’s disabilities by denying her request to transfer to
another school or take early retirement.
C. Retaliation Claims
Ms. Chavez alleges that the District retaliated against her for filing the 2012 Charge when
it disciplined her for allegedly exceeding her assigned work hours and rated her performance
“Unsatisfactory.” ECF No. 17 at ¶¶ 69–72. She also claims that the District retaliated against
her for filing the 2013 Charge when she was involuntarily transferred to a different position and
constructively discharged from her employment. ECF No. 17 ¶¶ 73–76. The District moves to
dismiss these claims, arguing that: (1) there is no causal connection between the Charges and the
materially adverse actions; and (2) the Complaint fails to allege an adverse employment action in
retaliation for filing the 2013 Charge. 4 For the following reasons, the Court disagrees with the
District’s arguments.
i.
Causal Connection
4
The District also argues that an employer must know of an employee’s protected activity in order to
retaliate, see Jones v. United States Parcel Service, Inc., 502 F.3d 1176, 1194–95 (10th Cir. 2007), and
that the Complaint does not indicate that Ms. Brungard, who allegedly retaliated against Ms. Chavez had
any knowledge of the 2012 Charge. See ECF No. 18 at ¶ 11. The Complaint alleges that (1) Ms.
Brungard is the Assistant Principal of ECC, and (2) the District was aware of the 2012 Charge and
presumably the 2013 Charge as well. Considering this, the Complaint supports the inference that Ms.
Brungard, one of the chief administrators of ECC, was aware of the protected activity.
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To prevail on a retaliation claim, a plaintiff must prove “that a causal connection existed
between the protected activity and the materially adverse action.” Somoza v. Univ. of Denver,
513 F.3d 1202, 1212 (10th Cir. 2008). “A causal connection is established where the plaintiff
presents evidence of circumstances that justify an inference of retaliatory motive, such as
protected conduct closely followed by adverse action.” Garrett v. Hewlett-Packard Co., 305
F.3d 1210, 1221 (10th Cir. 2002) (internal quotations omitted). If there is not “very close
temporal proximity between the protected activity and the retaliatory conduct, the plaintiff must
offer additional evidence to establish causation.” O’Neal v. Ferguson Const. Co., 237 F.3d
1248, 1253 (10th Cir. 2011). Therefore, “other evidence in the record could establish an adverse
employment action taken after a lengthy period of time was still in response to the earlier,
protected activity.” Piercy v. Maketa, 480 F.3d 1192, 1199 (10th Cir. 2007).
Regarding Ms. Chavez’s claim of retaliation in response to the 2012 Charge, the District
notes that Ms. Chavez was disciplined for exceeding her work hours and received the
“unsatisfactory” performance rating at least two months after the protected action. 5 However,
the Court need not decide whether the temporal proximity alone is sufficient to establish
causation because other allegations in the Complaint support the inference of a causal
connection. The Complaint alleges that after the 2012 Charge was filed the District began
disciplining Ms. Chavez in a manner that was inconsistent with the District’s policy and its
5
The parties dispute whether the date that the 2012 Charge was filed or the first day of the 2012–2013
school year—and thus the first opportunity the District had to inflict retaliatory action since the filing of
the 2012 Charge—should be used as a benchmark for measuring the time that elapsed before the first
alleged adverse action. See ECF No. 18 at 12; see also ECF No. 21 at 10. Because other allegations in
the Complaint support the inference that the retaliatory actions were in response to the protected activity
regardless of whether the temporal proximity test was met, the Court need not resolve this disagreement
at this juncture.
17
treatment of other employees who also violated the policy. For example, Ms. Chavez received a
written warning and an MOU for the first incident of exceeding her work hours even though the
District’s policy stated that employees would receive a written warning for the first violation and
an MOU for the second violation. Ms. Chavez was disciplined multiple times for a single
violation again in March 2013. Additionally, other employees exceeded their assigned weekly
work hours but were not disciplined for their violations. Finally, there was no apparent reason
for the District to give Ms. Chavez a performance rating of “Unsatisfactory.” Her ratings had
been excellent in past school years and her only violations of the District’s policy concerned
working more than she was permitted on two occasions. See ECF No. 17 at ¶ 46. Therefore, the
allegations in the Complaint support the inference of a causal connection between the 2012
Charge and the adverse actions, and the Court refuses to dismiss Ms. Chavez’s first retaliation
claim on this basis.
Regarding Ms. Chavez’s claim of retaliation in response to the 2013 Charge, the District
notes that the involuntary transfer and constructive discharge occurred at least six months after
the protected action. Defendant argues that this does not meet the temporal proximity test. See
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (“[The Tenth Circuit has]
held that a three-month period, standing alone, is insufficient to establish causation.”). However,
the Court finds that the other allegations in the Complaint support the inference of a causal
connection between the 2013 Charge and the adverse actions. Ms. Chavez was transferred to
HES against her will, and no other employees were transferred despite the District’s contentions
that Ms. Chavez was the first of many employees to be transferred. Ms. Chavez was also
required to clock in and out due to the allegedly unfair disciplinary actions the District had taken
18
against her. Ms. Chavez did clock in and out on her first day at HES but was still disciplined by
the District for failing to properly clock in or out. Consequently, the District informed Ms.
Chavez that her employment would be terminated and Ms. Chavez was forced to resign.
Therefore, “the pattern of retaliatory conduct” that took place “after the protected action” and
“culminate[d] later in [constructive] discharge” supports the inference of a causal connection
between the 2013 Charge and the adverse actions. See Piercy v. Maketa, 480 F.3d 1192, 1198
(10th Cir. 2007). Consequently, the Court declines to dismiss Ms. Chavez’s second retaliation
claim on this basis.
ii.
Adverse Actions in Response to the 2013 Charge
The District also argues that dismissal of Ms. Chavez’s claim of retaliation in response to
2013 Charge is appropriate because the Complaint has not alleged that an “adverse action” was
taken against Ms. Chavez in response to the 2013 Charge. ECF No. 18 at 12–15. Specifically,
the District argues that: (1) the involuntary transfer was not an adverse action; and (2) Ms.
Chavez was not constructively discharged. I disagree.
i. Involuntary Transfer
In determining whether an employer’s action constitutes an actionable “adverse action”
the Tenth Circuit uses a liberal, “case-by-case approach” that “examin[es] the unique factors
relevant to the situation at hand.” Sanchez v. Denver Pub. Sch., 164 F.3d 527, 526 (10th Cir.
1998). However, “a mere inconvenience or an alteration of job responsibilities” does not
constitute an adverse employment action. Id. Rather, “the plaintiff must show that a reasonable
employee would have found the action materially adverse such that they might be dissuaded
from making a charge of discrimination.” Somoza, 513 F.3d at 1213. Consequently, “[a]n
19
adverse employment action is a significant change in employment status, such as hiring, firing,
failing to promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits.” See Daniels v. United Parcel Serv., Inc., 701 F.3d 620,
635 (10th Cir. 2012). Thus, “reassignment of job duties is not automatically actionable” and
“[w]hether a particular reassignment is materially adverse depends upon the circumstances of the
particular case, and should be judged from the perspective of a reasonable person in the
plaintiff’s position.” Id.
Considering the present case, Ms. Chavez argues that the involuntary transfer, when
considered in conjunction with the District’s other adverse actions, is sufficient to constitute an
actionable adverse employment action. ECF No. 21 at 12–13. The District counters that this
argument is incorrect because the continuing violation theory on which it is based is only
applicable to hostile work environment claims. ECF No. 24 at 4. I agree with Ms. Chavez.
The District is referring to the rule that “discrete discriminatory acts,” such as “retaliatory
adverse employment decision[s],” “are not actionable if time barred, even when they are related
to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
113 (2002). However, the Tenth Circuit has never intimated that, once a Charge is timely filed,
courts are precluded from considering other retaliatory actions when deciding whether a specific
action constitutes an actionable adverse employment action. Rather, the Tenth Circuit has
explicitly left open the possibility that other “allegedly retaliatory incidents” could provide
evidence to support a retaliation claim. Id. Further, in Stover v. Martinez, the Tenth Circuit
aggregated the allegedly retaliatory actions to determine whether the “actions constitute[d]
harassment severe enough to constitute an adverse action for the purposes of a retaliation
20
[claim].” 382 F.3d 1064, 1075 (10th Cir. 2004). The District’s position is also contrary to the
Tenth Circuit’s case-by-case approach, see Sanchez, 164 F.3d at 526, and fails to recognize that
“the significance of any given act of retaliation will often depend upon the particular
circumstances,” see Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006).
Considering the circumstances alleged in the Complaint, the involuntary transfer could
plausibly constitute an adverse employment action. Ms. Chavez was the only employee that
transferred to HES despite the District’s indication that other employees would also be
transferred. This, along with the involuntary nature of the transfer, suggests that the transfer was
not merely “a normal incident” of Ms. Chavez’s employment. See Aquilino v. Univ. of Kan., 268
F.3d 930, 934 (10th Cir. 2002) (holding that the removal of an employee from a dissertation
committee was not an adverse action because the removal “[was] a normal incident of [the
plaintiff’s] denial of tenure.”). Further, due to the transfer Ms. Chavez was required to learn
HES’s procedures and policies. She did not know how to clock in and out at HES but managed
to do so with the help of the front desk employee. However, the District accused Ms. Chavez of
failing to properly clock in or out on her very first day of work at HES, and it decided to
terminate her employment. Thus the involuntary transfer was the first step toward Ms. Chavez’s
resigning from her job. Consequently, the transfer constitutes a significant change in
employment status and is sufficient to dissuade a reasonable person from bringing a
discrimination action. Therefore, the allegations in the Complaint support the inference that the
involuntary transfer constitutes an adverse employment action.
ii. Constructive Discharge
21
Constructive discharge constitutes an adverse employment action. See Fischer v.
Forestwood Co., Inc., 525 F.3d 972, 979 (10th Cir. 2008). “A constructive discharge occurs [ ]
when an employer, through unlawful acts, makes working conditions so intolerable that a
reasonable person in the employee's position would feel forced to resign.” Id. at 980. A plaintiff
is constructively discharged when “the employer by its discriminatory actions forced the plaintiff
to choose between resignation or termination.” Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 860
(10th Cir. 2007); see also Spulak v. K Mart Corp., 894 F.2d 1150, 1154 (10th Cir. 1990).
Here, the District told Ms. Chavez that her employment was going to be terminated.
Therefore, she was faced with the choice of resigning or waiting to be fired. See Spulak, 894
F.3d at 1154 (“A finding of constructive discharge is supported by evidence than an employee
has resigned, rather than waiting to be fired.”). Nevertheless, the District argues that Ms. Chavez
was not faced with such a choice because she could have challenged the alleged unjustified
termination using the District’s established grievance procedures. ECF No. 18 at 14–15.
However, even if Ms. Chavez could have challenged the termination after-the-fact, she still
would have faced the choice of either resigning or waiting to be fired. Further, the cases the
District relies on for the proposition that a voluntary resignation, even if prompted by the
employer’s actions or a choice between “unpleasant alternatives,” cannot constitute constructive
discharge arise in the context of procedural due process. See Hargray v. Hallandale, 57 F.3d
1560, 1568 (10th Cir. 1995); see also Parker v. Board of Regents, 981 F.2d 1159, 1162–63 (10th
Cir. 1992). In the ADEA context the Tenth Circuit has found constructive discharge when an
employee “was given an ultimatum either to retire or be fired,” see Spulak,, 894 F.2d at 1154,
or “reasonably believed she was at risk of losing her job,” see Acrey v. Am. Sheep Insutry Ass’n.,
22
981 F.2d 1569, 1574 (10th Cir. 1992). Consequently, the allegations in the Complaint support
the inference that Ms. Chavez was constructively discharged, which constitutes an adverse
employment action.
Thus, for the foregoing reasons, the Court will not dismiss Ms. Chavez’s retaliation
claims.
IV.
ORDER
For the reasons discussed above, defendant’s Motion to Dismiss, ECF No. 18, is
DENIED.
DATED this 31st day of March, 2016.
BY THE COURT:
___________________________________
R. Brooke Jackson
United States District Judge
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