Aubrey v. Koppes

• Decision Date: 18 September 2020
• Docket Number: No. 19-1153,19-1153
• Citation: 975 F.3d 995
• Parties: Kimberly AUBREY, Plaintiff - Appellant, v. Carly KOPPES, as Weld County Clerk and Recorder; Weld County Board of County Commissioners, Defendants - Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

975 F.3d 995

Kimberly AUBREY, Plaintiff - Appellant,

v.Carly KOPPES, as Weld County Clerk and Recorder; Weld County Board of County Commissioners, Defendants - Appellees.

No. 19-1153

United States Court of Appeals, Tenth Circuit.

FILED September 18, 2020

Jennifer Robinson, Robinson and Associates Law Office, LLC, Denver, Colorado, for Plaintiff-Appellant.

Alan Epstein (Mark S. Ratner and Kendra K. Smith, with him on the brief), Hall & Evans, L.L.C., Denver, Colorado for Defendants-Appellees.

Before CARSON, BALDOCK, and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff Kimberly Aubrey was, by all accounts, an exemplary employee for the Weld County, Colorado, Clerk and Recorder's office. She became unable to work for a time due to posterior reversible encephalopathy

syndrome ("PRES"), a rare condition characterized by fluctuating blood pressure that causes swelling in the brain, coma and sometimes death. Eventually Aubrey's PRES resolved and she began to recover. The County allowed her to take several months off but eventually terminated her employment. By that time, Aubrey contends, she had recovered sufficiently to be able to return to her job, with reasonable accommodation for her disability. Aubrey sued the County under the Americans with Disabilities Act ("ADA"), and several related statutes. The district court granted the County summary judgment on all claims. Having jurisdiction under 28 U.S.C. § 1291, we REVERSE in part. Aubrey presented sufficient evidence that a jury could find that the County failed to engage in the collaborative interactive process that the ADA calls for between an employer and an employee in order to determine whether there is a reasonable accommodation that would have permitted Aubrey to perform the essential functions of her job. In light of that evidence, Aubrey's failure-to-accommodate and disability discrimination claims were sufficient to survive summary judgment. We, therefore, REVERSE summary judgment for the County on those claims and REMAND them to the district court for a trial. But we AFFIRM summary judgment for the County on Aubrey's retaliation claims because she failed to present sufficient evidence for a reasonable jury to find that the County terminated her employment in retaliation for her asking for an accommodation.

I. BACKGROUND

We view the evidence in the light most favorable to Aubrey and draw all reasonable inferences from those facts in her favor. See Doe v. Univ. of Denver, 952 F.3d 1182, 1189 (10th Cir. 2020). The Clerk and Recorder's office has three divisions: motor vehicles, recordings, and elections. The motor vehicles division, in particular, is fast-paced and involves high stress because of the number of customers that division sees daily.

In June 2012, Weld County hired Aubrey for an Office Tech II position in the motor vehicles division and six months later promoted her to Office Tech III. Aubrey later applied and was selected for a position in the recordings department, where her duties included examining and analyzing legal documents for land record recordings, assessing and collecting fees, issuing marriage licenses and civil union certificates, and assisting the public over the telephone and computer and in writing. Aubrey was then temporarily assigned to the elections division for almost a year. Her work performance in these various positions was, by all accounts, exemplary.

As Aubrey was completing her temporary assignment in the elections division, she became unable to work in December 2014 because of PRES. Aubrey suffered severe tremors, seizures, and fell into a coma. Her functional capacity became severely limited. As her condition worsened, Aubrey was hospitalized for two weeks, beginning January 10, 2015, and then she was transferred to a long-term rehabilitation hospital where she stayed from January 29 until mid-February 2015. Eventually her PRES resolved and Aubrey began to recover. She underwent speech and occupational therapy, and continued to see several doctors.

During January, February and early March 2015, several of Aubrey's doctors indicated that she would not be able to return to work for approximately six months, until July 31 or August 1, 2015. One doctor explained that, in January 2015, she estimated that Aubrey would be able to return to work by August 1 because "most people get better in six months." (Aplt. App. 275.) But as the spring progressed, Aubrey recovered faster than expected.

When Aubrey first became unable to work, in December 2014, she applied for leave under the Family Medical Leave Act ("FMLA"), which was approved by the County's third-party administrator, FMLASource. Aubrey was notified that, in order to return to work, she had to have a physician certify that she was fit for duty. Aubrey exhausted her twelve weeks of FMLA leave by February 22, 2015. But the County continued to hold her position open for her without pay for several more months while placing another employee into that position temporarily. County policy permitted up to six months total leave (paid and unpaid combined). In addition, Aubrey's supervisor, Clerk and Recorder Carly Koppes, had discretion to authorize additional leave. Koppes exercised her discretion to extend Aubrey's leave indefinitely.

As requested, Aubrey kept the County's administrator, FMLASource, informed about her condition. She also contacted Jewell Vaughn in the County's Human Resources Department on February 17, 2015, telling Vaughn that she had been released from the rehabilitation hospital the previous week. Although Vaughn forgot to ask Aubrey to update her work status, Vaughn reported to Human Resources Director Patricia Russell that Aubrey said it would be "months" before she could return to work as she was having memory problems and could not see very well, but that her condition was reversible.

The next time Aubrey heard from the County was on April 15, 2015, when Deputy Clerk and Recorder Rodolfo Santos hand delivered a notice to Aubrey informing her that she had to attend a pre-termination hearing the next morning at 10:30 a.m. The notice was signed by Clerk and Recorder Koppes and stated that the County had scheduled the pre-termination notice because it could not accommodate Aubrey's restrictions from her medical problems. At her deposition, however, Koppes testified that this was a standard form letter drafted by the County Human Resources Department and that Koppes, in fact, did not have any information about Aubrey's medical problems or how long they might last.

The April 15 letter informed Aubrey that

[d]uring this hearing, you have the right to present any updated information regarding your medical condition as it relates to your ability to perform the essential functions of the Office Technician position. If you have any medical updates from your doctor, please bring that information with you to the scheduled hearing. This hearing is your opportunity to present any relevant information which would have bearing on your employment status.

(Id. at 244.) With less than twenty-four hours’ notice, however, Aubrey was unable to obtain any updated medical information from her doctors.

The April 16 pre-termination meeting between Koppes, Human Resources Director Russell, and Aubrey was transcribed. A reasonable jury could find from the overall tenor of that meeting that the County officials were not interested in gaining information about Aubrey's limitations and exploring whether she could return to her job, but instead had already decided to terminate her employment.

The meeting started with Russell and Koppes explaining that "it has nothing to do with [Aubrey's] job performance." (Id. at 246.) Aubrey asked if this meant that she was "automatically dismissed." (Id. at 247.) Russell explained that this was Aubrey's "opportunity to tell us why we shouldn't dismiss you," and then asked Aubrey if she "could [ ]come back to work within the next couple weeks ... to do your full position." (Id. ) Aubrey answered: "Actually, if you ask me to, I could come back next week. But I would not be able to do the things you asked me to. I mean, I could not go to Motor" vehicles, the most stressful of the three Clerk and Recorder divisions. (Id. ) "I would probably have to be somewhat retrained. I am finally remembering some of the things I did in election." (Id. ) Aubrey further explained that she was "still going to therapy" and had "worked very hard to be where I am. I just don't feel confident yet that I could do what I was. With a little bit of prompting and things like that, yes." (Id. at 248.)

She stated that she could not drive yet but "I am able to do my own insurance stuff now. I can write my own checks. I type. It's hard because of my vision, but it's all getting better. And I'm very thankful for that, because I could be dead, and I'm up and walking." (Id. at 249.) She also stated that she had typed something "for long-term disability. ... So if there's errors. It took me forever, but that was a couple of weeks ago. I'm working hard on the computer." (Id. at 258.) Aubrey indicated that her recovery was going better than her health care providers had expected; "I was supposed to be [in the rehabilitation hospital] the minimum six weeks. I was out in two." (Id. at 250.)

Aubrey also asked for some additional time to gather her medical information and explained that no one had previously notified her that she needed a return-to-work certification from her doctor at that time. Aubrey could not get in to see a neurologist until May 22, 2015, and a neuro ophthalmologist "on the 30th."¹ (Id. at 248.)

Human Resources Director Russell responded by informing Aubrey that her FMLA leave had expired; if Koppes decided she could no longer hold a position open for Aubrey and another job opened up later in the Clerk and Recorder's office, "I'm pretty sure that [Koppes] would so totally consider you" and, if Aubrey applied for some other County job, the Clerk and Recorder's office would give...