Winter v. Platte Valley School District RE-7

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 24-cv-01131-PAB-TPO
MATTHEW WINTER,
Plaintiff,
v.
PLATTE VALLEY SCHOOL DISTRICT RE-7,
Defendant.
ORDER
This matter comes before the Court on Defendant’s Motion for Summary
Judgment [Docket No. 34]. Defendant Platte Valley School District RE-7 (the “District”)
moves under Federal Rule of Civil Procedure 56 for summary judgment on the disability
discrimination and failure-to-accommodate claims brought against it under federal and
Colorado law. Docket No. 34 at 1-2. Plaintiff Matthew Winter filed a response, Docket
No. 40, and the District filed a reply. Docket No. 43. The Court has jurisdiction
pursuant to 28 U.S.C. § 1331.
I. UNDISPUTED FACTS1
A. Application and Hiring
Mr. Winter applied for the Technology Aide position with the District on July 22,
2021. Docket No. 34 at 2, ¶ 1. Technology Aides are non-classified, at-will employees
who do not have contracts; instead, they receive a notice of assignment for one school
1 The following facts are undisputed unless otherwise noted.
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year. Id., ¶ 2. In early August 2021, Michael Jakel, the District’s Director of
Technology, and Technology Specialists Dawn McConkey and Wendi Meyer
interviewed Mr. Winter. Id., ¶ 3. Mr. Jakel, who was ultimately responsible for deciding
who to hire, selected Mr. Winter. Id., ¶ 4.2 Mr. Winter was provided with a notice of
assignment that stated his employment term ran from August 10, 2021 through June 30,
2022. Id., ¶ 5. The notice of assignment stated that Mr. Winter or the District could end
Mr. Winter’s employment for any reason with two weeks’ notice. Id.
B. Job Duties, Structure of the Technology Department, and Ticketing
Mr. Winter’s job duties included: (1) troubleshooting technology problems; (2)
performing routine maintenance on hardware as directed, cleaning, and re-imaging
computers; (3) maintaining inventory of technology hardware and software; (4) installing
hardware and software as directed; (5) troubleshooting problems with student devices
and student accounts, including resetting user passwords; and (6) other duties as
assigned. Id. at 2-3, ¶ 6. The Technology Department had five employees: Mr. Jakel,
two Technology Specialists, and two Technology Aides. Id. at 3, ¶ 7. The Director of
Technology supervises the Technology Specialists and Aides. Id., ¶ 9. Technology
Specialists support District hardware and software for staff and students including
2 Mr. Winter disputes this fact, stating that Mr. Jakel “recommended that Plaintiff
be hired; however, the Board of Education ultimately decided whether to hire Plaintiff.”
Docket No. 40 at 2, ¶ 4. To support his argument, Mr. Winter cites only to “Ex. 1.” Id.
As will be noted in subsequent parts of this order, many of Mr. Winter’s attempts to
create disputes of fact violate the Court’s practice standards by failing to provide a
specific reference to material in the record supporting the denial. See Practice
Standards (Civil cases), Chief Judge Philip A. Brimmer, § III.F.3.b.iv. The Court
believes Mr. Winter means to reference Docket No. 40-1 at 1, 28:21-24, which states
that “ultimate employment decisions are approved and authorized by the Board of
Education.” The Court finds that this fact does not contradict the District’s asserted fact.
Moreover, the dispute is immaterial for purposes of this order. The Court deems this
fact admitted.
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working with Technology Aides to ensure technology needs are met for District schools.
Id., ¶ 8. When a Technology Aide is unable to solve a problem for District staff or
students, a Technology Specialist provides a higher level of expertise to troubleshoot a
problem. Id.
When a Technology Aide works on a problem, he documents his work by
creating a “ticket” noting what he did. Id., ¶ 10. For example, a ticket would identify the
machine that the Technology Aide is working on and the problem with the machine. Id.
In the ticket system, the Technology Aide documents the steps he took to resolve the
problem, and the outcome of each step used. Id., ¶ 11. If the Technology Aide is
successful, he documents that the particular strategy solved the problem in the ticket
system and returns the machine to the assigned user. Id., ¶ 12. If the Technology Aide
is unable to resolve the problem, he sends the machine to a Technology Specialist. Id.,
¶ 13. Each item must be documented in the ticketing system to ensure Technology
Specialists know what has been tried, and the outcome of each attempt. Id., ¶ 13. This
prevents a Technology Specialist from having to duplicate the same strategies, helps to
track problems with single machines and identifies whether there are similar problems
arising across the District. Id. at 3-4, ¶ 15.
C. Initial Disclosure of Disability and Request for Accommodation
Within the first two months of his employment, Mr. Winter notified Mr. Jakel, Ms.
Meyer, and Ms. McConkey that he struggled with memory issues and sometimes
completed tasks slowly. Id. at 4, ¶ 16.3 On November 3, 2021, Mr. Winter emailed Mr.
3 Mr. Winter disputes this fact, stating that he “informed Mr. Jakel, Dawn
McConkey (“Ms. McConkey”), and Wendi Meyer (“Ms. Meyer”) on his first day of
employment of his disability.” Docket No. 40 at 3, ¶ 16. Mr. Winter does not provide a
specific reference to the material in the record to support his dispute. The Court
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Jakel, Ms. Meyer, and Ms. McConkey, telling them that he had a seizure in 2015 and
had subsequently been diagnosed with PTSD and brain damage. Id., ¶ 17. Mr. Winter
asked that the recipients of the email be patient with him in completing job functions. Id.
Mr. Jakel and Mr. Winter discussed Mr. Winter’s needs. Id., ¶ 19. When Mr. Jakel
asked what Mr. Winter needed to do his job, Mr. Winter stated that he benefits from
written instructions, including checklists. Id., ¶ 20.4 Mr. Jakel, Ms. McConkey, and Ms.
Meyer provided Mr. Winter with written instructions and checklists to perform his job
duties. Id., ¶ 21.5 For example, Mr. Winter was provided with written instructions
regarding different ways to change a password on a computer; a checklist for how to
reimage computers, as well as instructions on how to reimage different brands of
computers; a student computer troubleshooting flow chart; and several other checklists.
Id. at 4-5, ¶ 22.6 Mr. Winter also told Mr. Jakel he was able to learn and remember
believes Mr. Winter means to reference Docket No. 40-2 at 2-3, 50:22-51:17. In any
event, the two asserted facts do not contradict each other, as the first day of work is
within the first two months of work. Moreover, the Court finds that the exact date on
which Mr. Winter disclosed his disability is immaterial for the purposes of this order.
The Court deems this fact admitted.
4 Mr. Winter disputes this fact, stating that “[t]hroughout Plaintiff’s employment,
Plaintiff requested several forms of accommodation for his disability which were not
limited to written instructions.” Docket No. 40 at 3, ¶ 20. The Court finds this to be
nonresponsive and deems this fact admitted.
5 Mr. Winter disputes this fact, stating that “Plaintiff was not involved in the
drafting or development of any checklists or instructions to address his needs, and the
checklists or instructions provided by Defendant did not address all Plaintiff’s needs
and/or job duties. Instead, Defendant provided pre-drafted checklists to Plaintiff without
discussing whether the checklists addressed Plaintiff’s needs, and Defendant expected
Plaintiff to draft his own checklists without an interactive process.” Docket No. 40 at 3,
¶ 21. The Court finds this to be nonresponsive and deems this fact admitted.
6 Mr. Winter disputes this fact, stating that “Plaintiff was not involved in the
drafting or development of any checklists or instructions to address his needs, and the
checklists or instructions provided by Defendant did not address all Plaintiff’s needs
and/or job duties.” Docket No. 40 at 3, ¶ 22. The Court finds this to be nonresponsive
and deems this fact admitted.
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things better if he took notes and developed his own checklists. Id. at 5, ¶ 23.
Accordingly, Mr. Jakel, Ms. McConkey, and Ms. Meyer allowed Mr. Winter to take notes,
regularly reminded him to take notes when they observed that he was not, and
supported him in the development of his own checklists. Id., ¶ 24.7
In spite of receiving these accommodations, Mr. Winter struggled to perform his
job duties during the 2021-2022 school year. Id., ¶ 25.8 Mr. Winter’s tickets contained
inaccurate information, and he had a low success rate with regard to resolving problems
with computers. Id., ¶ 26.9 Mr. Winter routinely failed to enter information into the
7 Mr. Winter disputes this fact, stating that “Plaintiff was not involved in the
drafting or development of any checklists or instructions to address his needs, and the
checklists or instructions provided by Defendant did not address all Plaintiff’s needs
and/or job duties. Instead, Defendant provided pre-drafted checklists to Plaintiff without
discussing whether the checklists addressed Plaintiff’s needs, and Defendant expected
Plaintiff to draft his own checklists without an interactive process.” Docket No. 40 at 4,
¶ 24. The Court finds this to be nonresponsive and deems this fact admitted.
8 Mr. Winter disputes this fact, stating that “Mr. Jakel testified in his deposition
that he does not remember discussing a disability with Plaintiff. When Mr. Jakel was
asked if he became aware that Plaintiff had a disability, Mr. Jakel answered, ‘No.’ No
interactive process ever occurred. See Ex. 3. Defendant did not conduct an interactive
process and did properly determine whether a certain accommodation actually
addressed Plaintiff’s needs. Further, Plaintiff performed his jobs satisfactorily, and
Plaintiff did not receive any performance plans or performance-related discipline during
the 2021-2022 school year.” Docket No. 40 at 4, ¶ 25. The first part of the dispute,
which involves the issue of whether an interactive process occurred and whether the
accommodation is sufficient, is nonresponsive. The second part of the dispute, which
involves the issue of whether Mr. Winter performed satisfactorily, is not supported by
any citation to the record. The Court therefore deems this fact admitted.
9 Mr. Winter disputes this fact, stating that, “Despite Defendant’s allegations that
all information is documented in Defendant’s ticketing system, Defendant has yet to
produce any tickets from Defendant’s ticketing system that purport to show that Plaintiff
did not resolve any alleged problem(s) and/or entered inaccurate information into any
tickets.” Docket No. 40 at 4, ¶ 26. To the extent that Mr. Winter argues that there is a
lack of evidence that his tickets were problematic, the Court notes that, even if the
District does not identify specific tickets that contained deficiencies, the District has
identified evidence of these deficiencies in the form of Mr. Jakel’s declaration. See
Docket No. 34-1 at 7-8, 10 ¶¶ 23, 25-26, 29; see also Declaration of Dawn McConkey,
Docket No. 34-16 at 3-5, ¶¶ 9, 12-13, 15; Declaration of Wendy Meyer, Docket No. 34-
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ticketing system and frequently entered inaccurate information into the ticketing system.
Id., ¶ 27.10 Although Mr. Jakel understood that there is learning curve, he was
concerned because Mr. Winter did not make as much progress as he expected. Id.,
¶ 28.11 Despite Mr. Winter’s poor progress, Mr. Jakel offered Mr. Winter another
assignment for the 2022-2023 school year. Id., ¶ 29.12
15 at 2-4, ¶¶ 6-11; Docket No. 34-18 at 4; Docket No. 34-22 at 1-3. Mr. Winter,
meanwhile, has failed to identify any evidence that supports his contention that his
tickets did not contain deficiencies. The Court therefore deems this fact admitted.
10 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the prior fact. See Docket No. 40 at 4, ¶ 27. For the same reason noted in
footnote 9, the Court deems this fact admitted.
11 Mr. Winter disputes this fact, stating that “Plaintiff repeatedly disclosed his
disability, yet Mr. Jakel testified in his deposition that he does not remember discussing
a disability with Plaintiff. When Mr. Jakel was asked if he became aware that Plaintiff
had a disability, Mr. Jakel answered, ‘No.’ No interactive process ever occurred.”
Docket No. 40 at 4-5, ¶ 28. The Court finds this to be nonresponsive and deems this
fact admitted. Moreover, the Court notes that Mr. Winter’s denial leaves out pertinent
portions of Mr. Jakel’s deposition testimony. In response to the question “[y]ou
mentioned that at some other time you became aware that Mr. Winter had a disability; is
that correct?” Mr. Jakel responded “[n]o.” Docket No. 40-3 at 2-3, 53:24-54:2. The next
question was “[s]o is it your testimony that you were never aware that Mr. Winter had a
disability during his employment?” Id. at 3, 54:3-5. Mr. Jakel responded “I am unaware
of any documentation. His several issues that he had were discussed, that he had a
short-term memory problem due to, I think, some medical things that happened in his
past. And we just talked about it briefly, about the things that would help him to be
successful, and I – we provided those requested materials or the things that he had –
that he had said would help him be successful. We – we tried to provide those.” Id.,
54:6-14.
12 Mr. Winter disputes this fact, stating that “Defendant has not produced any
problematic tickets, performance plans, performance-related discipline, performance
evaluations, or other evidence that supports its assertion that Plaintiff exhibited ‘poor
progress.’ Defendant cannot support its allegations that Mr. Winter exhibited poor
performance. The fact that Mr. Winter received additional tasks and never received
written discipline from Defendant directly contradicts Defendant’s allegations of poor
performance.” Docket No. 40 at 5, ¶ 29. The District has, however, identified testimony
from Mr. Jakel regarding Mr. Winter’s performance, see, e.g., Docket No. 34 at 7, 9,
¶¶ 44-45, 60, and Mr. Winter has failed to identify any materials in the record to counter
this assertion. The Court therefore deems this fact admitted.
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Each summer, the technology department collects all student computers and “re-
images” the computers. Id., ¶ 30. Re-imaging computers entails erasing all data and
software from machines, installing blank operating systems, applying configuration
settings to machines, installing appropriate software packages where applicable, and
verifying that settings and software are installed correctly. Id. at 5-6, ¶ 31. During the
summer of 2022, Mr. Winter was tasked with re-imaging the high school computers. Id.,
¶ 32. Mr. Winter was provided with checklists to perform this task. Id.13 Additionally,
he worked in a quiet environment with no distractions. Id. Mr. Winter did not request or
indicate that he needed any other accommodations for this task. Id., ¶ 33.14 Mr. Winter
took an unusually long time and made a number of mistakes in re-imaging the
computers. Id., ¶ 34.15
13 Mr. Winter disputes this fact, stating that “Defendant did not interact with
Plaintiff to determine what checklist(s) for reimaging computers would reasonably
address Plaintiff’s need for accommodation.” Docket No. 40 at 5, ¶ 32. The Court finds
this to be nonresponsive and deems this fact admitted.
14 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the prior fact. See Docket No. 40 at 5, ¶ 33. For the same reason noted in
footnote 13, the Court deems this fact admitted.
15 Mr. Winter disputes this fact, stating that, “[d]espite Defendant’s allegations
that all information is documented in Defendant’s ticketing system, Defendant has yet to
produce any ticket from Defendant’s ticketing system, or any other documentation, that
purports to show that Plaintiff made any mistake(s) while reimaging computers.
Additionally, Defendant does not allege and cannot prove that anyone timed and
maintained records of the time it took each Technology Aide to re-image each
computer. Mr. Winter did not take an ‘unusually long time’ to complete his tasks nor did
he ‘make a number of mistakes’ when it came to re-imaging the computers.” Docket
No. 40 at 5, ¶ 34. The District has, however, identified testimony from Mr. Jakel
regarding Mr. Winter’s performance, see, e.g., Docket No. 34 at 7, 9, ¶¶ 44-45, 60, and
Mr. Winter has failed to identify any materials in the record to counter this assertion.
The Court therefore deems this fact admitted.
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D. October 2022 Job Evaluation
Per District expectations, Mr. Jakel, as Mr. Winter’s supervisor, was responsible
for evaluating Mr. Winter annually. Id., ¶ 35. Mr. Winter was due for an evaluation
during the 2022-2023 school year. Id., ¶ 36. Mr. Jakel and Mr. Winter met on October
27, 2022. Id., ¶ 37. In the evaluation, Mr. Jakel noted that Mr. Winter needed to
improve with regard to documenting his tickets accurately and taking accurate notes.
Id., ¶ 38.16 Mr. Jakel rated Mr. Winter a “2” on overall performance, meaning he needed
to improve. Id., ¶ 39.17 Mr. Jakel advised Mr. Winter to work on organizing his notes
better, work through the checklists he made, and work through the checklists the District
provided. Id. at 6-7, ¶ 40. Mr. Winter signed the performance evaluation without
comment. Id. at 7, ¶ 41.
16 Mr. Winter disputes this fact, stating that, “[o]n Plaintiff’s 2022-2023 Classified
Personnel Evaluation [ ], Mr. Jakel rated Plaintiff with a score of 2 (Needs to Improve)
for only two areas: ‘Understands and completes all records, reports, and documents
required,’ and ‘Completes tasks accurately.’ Both of these areas were previously and
repeatedly identified by Plaintiff as areas for which he needed accommodation due to
his disability, but Defendant did not conduct an interactive process to determine
reasonable accommodations for Plaintiff.” Docket No. 40 at 6, ¶ 38. The Court finds
this to be nonresponsive and deems this fact admitted.
17 Mr. Winter disputes this fact, stating that, “[o]f the 25 evaluation items listed on
the Evaluation, Plaintiff received a score of 4 (Exceeds Expectations) for 6 areas,
received a score of 3 (Meets Expectations) on 17 areas, and did not receive a score of
1 (Unsatisfactory) for any area. See Defendant’s Exhibit 9 to its MSJ Exhibit A. When
averaging the scores for the 25 areas listed on the Evaluation, Plaintiff’s averaged
overall score is 3.16 (Meets Expectations), yet Mr. Jakel wrote ‘2’ for Plaintiff’s overall
score. Id. at p. 3. Additionally, despite Plaintiff’s repeated disclosure to Mr. Jakel that
he has a disability that affects his memory, Mr. Jakel’s overall comment on the
Evaluation was, ‘We need to work on getting your tasks to be committed to your long-
term memory.’ Id. Mr. Jakel’s performance expectation wholly contradicted Plaintiff’s
medical needs and references part of Plaintiff’s disability – trouble with long-term
memory retention – as further justification for a lower performance rating.” Docket No.
430 at 6, ¶ 39. The Court finds this to be nonresponsive and deems this fact admitted.
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E. Performance after October 2022 Job Evaluation
Mr. Winter’s job performance did not improve after his evaluation. Id., ¶ 42.18
His tickets continued to include inaccurate information, and he did not improve his
success rate with regard to resolving low-level tickets. Id., ¶ 43.19 Beginning in or
around January 2023, Mr. Winter repeatedly opened tickets but failed to document any
follow up steps that he had taken to troubleshoot the problem or the steps he had taken
to try to resolve the problem. Id., ¶ 44.20 This created more work for the Technology
Specialists, who ended up duplicating strategies that Mr. Winter had unsuccessfully
tried because they were not documented. Id. Beginning in January of 2023, teachers
and students stopped bringing their technology concerns to Mr. Winter; instead, they
went to a high school teacher, Darren Horn, or to the Technology Specialists. Id.,
¶ 45.21 This lack of confidence in Mr. Winter created work for Mr. Horn outside of his
job duties and added to the responsibilities of the District Technology Specialists. Id.,
18 Mr. Winter disputes this fact, stating that, “[d]espite Defendant’s allegations
that all information is documented in Defendant’s ticketing system, Defendant has yet to
produce any ticket from Defendant’s ticketing system, or any other documentation, that
purports to show that Plaintiff’s performance was unsatisfactory. Plaintiff of his own
initiative took the appropriate steps to improve his notes organization and checklists
through OneNote in addition to taking Microsoft classes. See Ex. 2. Plaintiff often
received conflicting procedure instructions from Mr. Jakel, Ms. Meyer and Ms.
McConkey.” Docket No. 40 at 7, ¶ 42. The Court finds this to be nonresponsive and
deems this fact admitted.
19 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the prior fact. See Docket No. 40 at 7, ¶ 43. For the same reason noted in
footnote 18, the Court deems this fact admitted.
20 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the fact asserted at Docket No. 34 at 7, ¶ 42. See Docket No. 40 at 7, ¶ 44.
For the same reason noted in footnote 18, the Court deems this fact admitted.
21 Mr. Winter disputes this fact, stating that “[w]hen Mr. Jackel emailed Darren
Horn . . . to ask if Mr. Horn was addressing many technology issues, Mr. Horn
responded ‘No I am not fixing a lot there have been a few that’s all . . . It’s a simple fix.”
Docket No. 40 at 7, ¶ 45. The Court finds this to be nonresponsive and deems this fact
admitted.
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¶ 46.22 It was particularly problematic for the technology department when Mr. Horn
solved technology problems for students because the problem and the resolution were
not documented in the ticket system. Id., ¶ 47.23 The lack of documentation prevented
the District from tracking problems with single computers and from tracking technology
problems across the District. Id. at 7-8, ¶ 48.24
Because of concerns that problems were not documented in the ticketing system,
Mr. Jakel determined that any problems with school staff computers should go directly
to the Technology Specialists. Id. at 8, ¶ 49.25 Mr. Jakel implemented this strategy to
ensure accurate documentation in the system, and in hopes that reducing Mr. Winter’s
workload would help his accuracy. Id., ¶ 50.26 This increased the workload of
22 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the prior fact and stating that “[n]o lack of confidence existed and Defendant
has not produced any substantive evidence to support such an allegation.” Docket No.
40 at 7, ¶ 46. The District has, however, identified testimony from Mr. Jakel regarding
the lack of confidence in Mr. Winter, see, e.g., Docket No. 34 at 7, 9, ¶¶ 44-45, 60, and
Mr. Winter has failed to identify any materials in the record to counter this assertion.
The Court therefore deems this fact admitted.
23 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the fact asserted at Docket No. 34 at 7, ¶ 45. See Docket No. 40 at 7, ¶ 47.
For the same reason noted in footnote 21, the Court deems this fact admitted.
24 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the fact asserted at Docket No. 34 at 7, ¶ 45. See Docket No. 40 at 7, ¶ 48.
For the same reason noted in footnote 21, the Court deems this fact admitted.
25 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the facts asserted at Docket No. 34 at 7-8, ¶¶ 42, 45. See Docket No. 40 at
7, ¶ 49. For the same reasons noted in footnotes 18 and 21, the Court deems this fact
admitted.
26 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the facts asserted at Docket No. 34 at 7-8, ¶¶ 42, 45. See Docket No. 40 at
7, ¶ 50. For the same reasons noted in footnotes 18 and 21, the Court deems this fact
admitted.
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Technology Specialists, but was necessary for the department to perform its job duties
proficiently. Id., ¶ 51.27
F. Planning for Summer 2023 Computer Re-Imaging and Mr. Winter’s
Request for Headphones
In or around February or March of 2023, the technology department began to
prepare for reimaging computers over the summer. Id., ¶ 52. At the time, the plan was
for Mr. Winter to work with the middle school Technology Aide, Destin Brown, on the
project. Id., ¶ 53. Mr. Winter requested noise-cancelling headphones, although he did
not indicate the request was related to any disability or need for accommodation. Id.,
¶ 54.28 Mr. Jakel explained to Mr. Winter that re-imaging the computers was going to
be a collaborative project, and the headphones would hinder his ability to collaborate
with Mr. Brown as needed. Id., ¶ 55.29 Mr. Winter did not ask for noise cancelling
headphones on any other occasion. Id., ¶ 56.
27 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the facts asserted at Docket No. 34 at 7-8, ¶¶ 42, 45. See Docket No. 40 at
7, ¶ 51. For the same reasons noted in footnotes 18 and 21, the Court deems this fact
admitted.
28 Mr. Winter disputes this fact, stating that he “repeatedly disclosed to Defendant
that he had a disability, and that the headphones would address his medical needs.”
Docket No. 40 at 8, ¶ 54. Because Mr. Winter does not cite any evidence in the record
in support of this dispute, the Court deems this fact admitted. See Practice Standards
(Civil cases), Chief Judge Philip A. Brimmer, § III.F.3.b.iv.
29 Mr. Winter disputes this fact, stating that “Defendant acknowledge[s] that
Plaintiff re-imaged computers the previous summer by himself and thus acknowledges
that re-imaging computers is not collaborative.” Docket No. 40 at 8, ¶ 55. The fact that
Mr. Winter’s work the prior summer re-imaging computers was not done in collaboration
with another colleague does not create a dispute of fact as to whether Mr. Jakel told Mr.
Winter that the 2023 re-imaging project would be a collaborative effort. The Court
deems this fact admitted.
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G. The Final Months of Mr. Winter’s Employment; Request for Blue-
Light Glasses
Mr. Jakel was tasked with Departmental planning each year, including making
hiring decisions. Id. at 9, ¶ 57. Every school year in or around March, Mr. Jakel
determines whether he will offer Technology Aides a notice of assignment for the
following school year. Id., ¶ 58.30 He made this decision at that time because, if
another Technology Aide is needed, he had time to post the job opening in a timely
manner. Id., ¶ 59. In March 2023, Mr. Jakel determined that he was not going to offer
Mr. Winter another notice of assignment for the 2023-2024 school year because Mr.
Winter was not improving in his job performance; in fact, Mr. Jakel believed it was
getting worse. Id., ¶ 60.31
On April 25, 2023, Mr. Winter sent Mr. Jakel a text message requesting
prescription glasses that filter blue light. Id., ¶ 61. Mr. Winter stated that he read blue
light filters are helpful for people with epilepsy. Id. Mr. Jakel asked whether there were
30 Mr. Winter disputes this fact, stating that “Defendant’s Exhibit 6 to its MSJ
Exhibit 6 shows that Mr. Jakel solicited comments related to Plaintiff’s performance from
Ms. McConkey on May 3, 2023, not in March 2023. Accordingly, Mr. Jakel was
determining assignments in May, not March.” Docket No. 40 at 8, ¶ 58. The fact that
Mr. Jakel received an email from one of the technology specialists on May 3, 2023
detailing the specialist’s concerns with Mr. Winter’s performance does not contradict Mr.
Jakel’s statement that he had made the decision not to offer Mr. Winter another notice
of assignment in March 2023. The Court deems this fact admitted.
31 Mr. Winter disputes this fact, citing to the argument he made in support of his
dispute of the facts asserted at Docket No. 34 at 9, ¶ 58, and stating that “Mr. Jakel’s
solicitation of performance-related comments from Ms. McConkey about Plaintiff
occurred within days of Plaintiff asking Mr. Jakel for accommodation for his disability.”
Docket No. 40 at 8, ¶ 60. As the Court explained in footnote 30, the fact of Ms.
McConkey’s email does not necessarily contradict the District’s assertion that Mr. Jakel
had previously made a decision on the question of Mr. Winter’s future employment. The
Court deems this fact admitted.
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other strategies that might work, such as using filters built into the computers. Id., ¶ 64.
Mr. Jakel suggested that Mr. Winter might be able to get the blue filter prescription
glasses through his District-provided health insurance. Id. at 10, ¶ 65. Mr. Jakel
advised that he and Mr. Winter speak with Marla Story, the District’s Human Resources
Director. Id., ¶ 67. Ms. Story discussed Mr. Winter’s request with Mr. Jakel and
researched what accommodations are available and reasonable for filtering blue light.
Id., ¶ 68. Ms. Story determined that the District could purchase lens covers for Mr.
Winter’s glasses that filter blue light. Id., ¶ 69. On April 25, 2023, before Ms. Story was
able to discuss the lens covers with Mr. Winter, Mr. Winter emailed Ms. Story asking for
a meeting. Id., ¶ 70. Ms. Story responded to Mr. Winter on April 26, 2023, agreeing to
meet with him and asked him to offer dates and times that they could meet. Id., ¶ 71.
On May 4, 2023, Mr. Jakel set a meeting with District Superintendent Jeremy
Burmeister and Mr. Winter. Id., ¶ 75. At the meeting, Mr. Jakel informed Mr. Winter that
the District would not be offering him a notice of assignment for the following school
year. Id. at 11, ¶ 76. Mr. Jakel informed Mr. Winter that he could finish his assignment
through the end of the 2022-2023 school year. Id., ¶ 78. Mr. Jakel also informed Mr.
Winter that, if he wanted to resign, the District would accept his resignation. Id., ¶ 79.
On May 4, 2023, Mr. Winter emailed Mr. Jakel and informed him that he would
resign as of May 31, 2023. Id., ¶ 80. On Saturday, May 6, 2023, Mr. Winter emailed all
Platte Valley High School staff informing them that he was resigning as of May 5, 2023
to take advantage of another employment opportunity. Id., ¶ 81.
II. LEGAL STANDARD
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115. When reviewing a
motion for summary judgment, a court must view the evidence in the light most
favorable to the non-moving party. Id.
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III. ANALYSIS
Mr. Winter brings claims for disability discrimination and for failure to
accommodate under the Americans with Disabilities Act (“ADA”) and the Colorado Anti-
Discrimination Act (“CADA”). Docket No. 9 at 6-9; see also Docket No. 30 at 5-6
(interpreting the complaint to allege both discrimination and failure to accommodate
claims). The District seeks summary judgment on all four claims. See Docket No. 34 at
1-2. The Court will first analyze the disability discrimination claims and then the failure
to accommodate claims. As the Court has previously noted, Colorado state
employment discrimination claims are analyzed under the same standards as federal
law. See Docket No. 30 at 15 (citing Colo. C.R. Comm’n v. Big O Tires, Inc., 940 P.2d
397, 399-400 (Colo. 1997); Johnson v. Weld Cnty., 594 F.3d 1202, 1219 (10th Cir.
2010)).
A. Discrimination Claim
Mr. Winter alleges that he was discriminated against on the basis of his disability.
Docket No. 9 at 6-9. When a plaintiff does not present direct evidence of
discrimination,32 a court looks to the burden-shifting framework from McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), to evaluate disability discrimination claims arising
under the ADA. See Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1192 (10th Cir. 2018)
(applying framework to an ADA claim).
The first step of the McDonnell Douglas framework “requires the plaintiff to
establish a prima facie case of discrimination.” Lincoln v. BNSF Ry. Co., 900 F.3d
1166, 1192 (10th Cir. 2018); Herrmann v. Salt Lake City Corp., 21 F.4th 666, 678 (10th
32 The Court has previously found that Mr. Winter proceeds on an indirect theory
of discrimination. See Docket No. 30 at 6 n.3.
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Cir. 2021) (to survive summary judgment, a plaintiff must raise a genuine issue of
disputed fact for each element of a prima facie case). “To establish a prima facie case
under the ADA, a plaintiff must demonstrate: (1) that [he] is a disabled person within the
meaning of the ADA; (2) that [he] is qualified, that is, [he] is able to perform the essential
functions of the job, with or without reasonable accommodation; and (3) that the
employer terminated [his] employment under circumstances which give rise to an
inference that the termination was based on [his] disability.” Morgan v. Hilti, Inc., 108
F.3d 1319, 1323 (10th Cir. 1997) (internal citations omitted); see also Herrick v. Vail
Corp., 2024 WL 4360502, at *5 (10th Cir. Oct. 1, 2024) (“To establish a prima facie case
on his wrongful-discharge claim, Herrick had to show: (1) he was a disabled person as
defined by the ADA; (2) he was qualified, with or without reasonable accommodation, to
perform the essential functions of his job; and (3) he was fired because of his disability.”
(citation, quotation, and alterations omitted)).
If Mr. Winter demonstrates each of the elements of his prima facie case under his
ADA discrimination claim, the second step of the framework dictates that “the burden
shifts to the employer to articulate a legitimate, nondiscriminatory reason” for Mr.
Winter’s termination. Lincoln, 900 F.3d at 1193 (internal quotation marks and citation
omitted). If the District offers a legitimate, non-discriminatory reason, the third step of
the framework applies, meaning that Mr. Winter can raise a genuine issue of material
fact on his discrimination claim by showing that the District’s stated reason for the
employment action is a pretext for discrimination. Id.
1. 	Prima Facie Case
For an ADA claim brought under an indirect theory of discrimination, Mr. Winter
must demonstrate that he is a disabled person as defined by the ADA, that he was
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qualified, with or without reasonable accommodation, to perform the essential functions
of his job, and that he suffered an adverse employment action because of his disability.
Aubrey v. Koppes, 975 F.3d 995, 1014 (10th Cir. 2020). The District challenges only
the third element of the prima facie case. See Docket No. 34 at 13-15. The District
makes two arguments as to why Mr. Winter’s claim fails on this element. Id. First, the
District asserts that Mr. Winter has failed to show that he suffered adverse employment
action because he was not constructively discharged. Id. at 13-14. Second, the District
argues that, even if Mr. Winter was constructively discharged, there is no evidence that
he was terminated because of his status as a person with a disability. Id. at 14-15.
a. 	Constructive Discharge
The District argues that Mr. Winter was not constructively discharged 1) because
Mr. Winter fails to cite evidence that his working conditions were so intolerable that he
had no other choice but to quit and 2) because he resigned of his own free will. Id. at
13-14. The Tenth Circuit has explained that courts should consider four factors in
analyzing whether an employee’s resignation was involuntary. See Parker v. Bd. of
Regents of Tulsa Jr. College, 981 F.2d 1159, 1162 (10th Cir. 1992). These factors are
“(1) whether the employee was given some alternative to resignation; (2) whether the
employee understood the nature of the choice he was given; (3) whether the employee
was given a reasonable time in which to choose; and (4) whether he was permitted to
select the effective date of resignation.” Id.
For the first factor, the fact that the employee’s alternative to resignation is
termination does not render the resignation involuntary unless the employer lacked
good cause to believe that there were grounds for termination. Id. Here, the District
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had good cause to believe there were grounds for termination given the undisputed
facts of Mr. Winter’s deficient performance of his job duties.
For the second factor, there is no evidence that Mr. Winter did not understand
the nature of the choice he was given. Instead, his May 4 and May 6, 2023 emails
support the conclusion that Mr. Winter understood the nature of the choice. See Docket
No. 34 at 11, ¶¶ 80-81. For the third factor, Mr. Winter was, on May 4, 2023, given the
option between resignation and termination. Id. at 10-11, ¶¶ 75-79. Neither party
addresses how much time Mr. Winter was given to make his decision. However, Mr.
Winter emailed Mr. Jakel later that same day and informed him that he would resign
effective May 31, 2023. Id. at 11, ¶ 80. The Court finds that, given Mr. Winter’s quick
decision, the third factor has been satisfied. Cf. Harrell v. Stitt, 2024 WL 3372624, at *4
(10th Cir. July 11, 2024) (holding that the third Parker factor was satisfied when the
employee, upon being presented with his choices among resignation, retirement, and
termination, immediately stated that he would retire). For the fourth factor, neither party
addresses whether, in the May 4 meeting, Mr. Winter was given the ability to select his
resignation date; however, the fact that Mr. Winter’s email to Mr. Jakel stated the date
upon which Mr. Winter would resign, the Court finds that Mr. Winter evidently did have
the ability to choose his resignation date. The Court therefore finds that, under the
Parker factors, Mr. Winter’s resignation was voluntary and he was not constructively
discharged. Thus, Mr. Winter fails to demonstrate the adverse employment action
element of the prima facie case.
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In the alternative, even if the Court were to find that Mr. Winter was constructively
discharged, his discrimination claim would still fail for the reasons discussed in the
remainder of this order.
b. Termination Because of Disability
The District claims that “there is no evidence that [Mr. Winter’s termination] had
anything to do with a disability. An employee must suffer an adverse employment
action because of his status as a person with a disability to establish a prima
case. . . . Winter cannot do so.” Docket No. 34 at 14-15. The District does not develop
its argument beyond these two sentences.
To show he was fired because of his disability, Mr. Winter must “present some
affirmative evidence that disability was a determining factor in the employer’s decision.”
Hampton v. Utah Dep’t of Corr., 87 F.4th 1183, 1197 (10th Cir. 2023) (quoting Morgan,
108 F.3d at 1323). “At the summary judgment stage, this burden is neither ‘onerous’
nor ‘perfunctory.’” Id. at 1198 (quoting Morgan, 108 F.3d at 1323-24). “The plaintiff
must present evidence that, if the trier of fact finds it credible, and the employer remains
silent, [he] would be entitled to judgment as a matter of law.” Morgan, 108 F.3d at 1324.
The Court finds that Mr. Winter has presented evidence that gives rise to an
inference that his termination was based on disability. Mr. Winter informed Mr. Jakel
and others that he struggled with memory, completed tasks slowly, and had been
diagnosed with PTSD and brain damage. Docket No. 34 at 4, ¶¶ 16-17. Mr. Winter
asked that his colleagues be patient with him in completing tasks. Id., ¶ 17. Mr. Winter,
however, took “an unusually long time” in completing assigned tasks. Id. at 6, ¶ 34. Mr.
Winter’s burden at this step is not onerous, and the Court finds that these facts, viewed
in a light most favorable to Mr. Winter, are sufficient to give rise to an inference that Mr.
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Winter’s slowness at completing tasks was due to his memory struggles and brain
damage and that these disability-related performance issues were a determining factor
in the District’s termination decision.
As the District does not challenge the other elements of the prima facie case –
which consider whether Mr. Winter was disabled within the meaning of the ADA and
whether Mr. Winter was qualified to perform the essential functions of his job – the
Court finds that Mr. Winter has made a prima facie case of wrongful termination.
2. 	Legitimate, Non-Discriminatory Reason
Since Mr. Winter has made a sufficient showing that his termination occurred
under circumstances giving rise to an inference of discrimination, the District must
“articulate a legitimate, nondiscriminatory reason” for the termination. Lincoln, 900 F.3d
at 1193 (internal quotation marks and citation omitted). The District’s “burden is to
establish facts from which the court may infer a proper reason behind defendant[s’]
decision to discharge plaintiff.” Richardson v. Topeka Metro. Transit Auth., 987 F.
Supp. 887, 891 (D. Kan. 1997). “This burden is one of production, not persuasion; it
can involve no credibility assessment.” Carter v. Pathfinder Energy Servs., Inc., 662
F.3d 1134, 1149 (10th Cir. 2011) (quoting Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 142 (2000)). The burden has been characterized as “exceedingly light.”
Id. (citation omitted).
The District asserts that it fired Mr. Winter because Mr. Jakel believed that Mr.
Winter’s job performance, rather than improving with time, was getting worse. Docket
No. 34 at 9, ¶ 60. Mr. Winter’s difficulties with properly documenting issues with school
technology resulted in an increase in work for other members of the District’s
technology team, as well as for a high school teacher whose job duties did not include
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fixing technology problems. Id. at 7, ¶¶ 45-47. “Poor performance is a quintessentially
legitimate and nondiscriminatory reason for termination.” Bryant v. Farmers Ins. Exch.,
432 F.3d 1114, 1125 (10th Cir. 2005) (citation omitted). The Court finds that the
undisputed facts show that the District’s stated reason for terminating Mr. Winter is
legitimate and non-discriminatory.33
3. 	Pretext
Given that the District has shown a legitimate, non-discriminatory reason for not
renewing Mr. Winter’s contract, Mr. Winter must demonstrate that there is a dispute of
material fact as to whether the District’s proffered reason for the nonrenewal of Mr.
Winter was pretextual. “A plaintiff demonstrates pretext by showing either that a
discriminatory reason more likely motivated the employer or that the employer’s
proffered explanation is unworthy of credence.” Foster v. Mountain Coal Co., LLC, 830
F.3d 1178, 1194 (10th Cir. 2016) (quoting Zamora v. Elite Logistics, Inc., 478 F.3d
1160, 1166 (10th Cir. 2007)). “Pretext can be inferred from evidence revealing
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
33 Although not necessarily argued by either party, an issue raised by the facts of
the case is whether poor job performance can still serve as a legitimate basis for
termination when the employee’s disability appears to be positively correlated with the
employee’s poor performance. Courts have held, or at least indicated, that performance
issues still constitute a legitimate basis for termination in these circumstances. See
Williams v. Widnall, 79 F.3d 1003, 1007 (10th Cir. 1996) (holding that an employer does
not violate the ADA when it takes into account the effects of an employee’s disability);
Gazaway v. Makita U.S.A., Inc., 11 F. Supp. 2d 1281, 1290 (D. Kan. 1998), aff'd, 182
F.3d 931 (10th Cir. 1999) (“the court believes that the Tenth Circuit would conclude that
an employer's decision to terminate a disabled employee in a reduction in force based
on a consequence of the employee's disability is not, without more, actionable under the
ADA.”) (emphasis omitted); Green v. U.S. Anesthesia Partners of Colo., Inc., 624 F.
Supp. 3d 1201, 1213 (D. Colo. 2022), aff'd, 2023 WL 7015660 (10th Cir. Oct. 25, 2023);
Matthews v. Commonwealth Edison Co., 128 F.3d 1194, 1198 (7th Cir. 1997) (“foolish
or not, [the termination decision] was not actionable under the ADA because it was not
based on disability, although it was correlated with it.”).
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employer’s explanation.” Walkingstick Dixon v. Okla. ex rel. Reg’l Univ. Sys. of Okla.
Bd. of Regents, 125 F.4th 1321, 1337 (10th Cir. 2025) (citation omitted). “The critical
question regarding this aspect of the McDonnell Douglas rubric is whether a reasonable
factfinder could rationally find the employer’s rationale unworthy of credence and hence
infer that the employer did not act for the asserted non-retaliatory reasons.” Id. (quoting
Lounds v. Lincare, Inc., 812 F.3d 1208, 1234 (10th Cir. 2015)). “The plaintiff need not
show both that the defendant’s reasons were a pretext and that the real reason was
discrimination – the fact of pretext alone may allow the inference of discrimination.” Id.
(quoting Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1135-36 (10th Cir. 2003)).
When evaluating pretext, courts “examine the facts as they appear to the person
making the decision, and do not look to the plaintiff’s subjective evaluation of the
situation.” Lewis v. Peabody Rocky Mountain Servs., LLC, 2023 WL 4927248, at *3
(10th Cir. Aug. 2, 2023) (unpublished) (quoting DePaula v. Easter Seals El Mirador, 859
F.3d 957, 971 (10th Cir. 2017) (quotations omitted)). “At this stage, the relevant inquiry
is whether the employee has created a genuine issue of material fact as to whether the
employer honestly believed its proffered reasons and ‘acted in good faith upon the
beliefs.’” Id. (quoting Swackhammer v. Sprint/United Mgmt. Co., 493 F.3d 1160, 1170
(10th Cir. 2007)); Litzsinger v. Adams Cnty. Coroner’s Off., 25 F.4th 1280, 1287 (10th
Cir. 2022) (“The plaintiff must come forward with evidence that the employer didn’t really
believe its proffered reasons for action and thus may have been pursuing a hidden
discriminatory agenda.” (citation and quotation omitted)).
The Court understands Mr. Winter to offer two reasons why there is a genuine
dispute of material fact as to whether it is more likely that the District terminated him
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because of his disability. Docket No. 40 at 18-19. First, Mr. Winter states that his
“2022-2023 Evaluation, completed in October 2022, reflected that Plaintiff was meeting
expectations, and Defendant provides no evidence of performance issues involving
Plaintiff during the Spring 2023 semester that warranted termination.” Id. at 18. The
undisputed facts discredit this argument. In the October 2022 performance evaluation,
Mr. Winter received a “2” on overall performance, meaning that he needed to improve.
Docket No. 34 at 6, ¶ 39.34 Further, there are a number of undisputed facts regarding
issues with Mr. Winter’s performance in the Spring 2023 semester and how those
performance issues impacted the District’s technology services. Id. at 7-8, ¶¶ 44-51.
The Court finds that no reasonable juror could find that performance issues did not
justify Mr. Winter’s termination, and thus no reasonable juror could find pretext based on
this argument.
Second, Mr. Winter notes the temporal proximity between his April 25, 2023
request for blue-light glasses and the May 4, 2023 meeting at which he was told that he
could be terminated or resign. Id. at 18-19. In support of this argument, Mr. Winter
states that the fact that, on May 3, 2023, Ms. McConkey provided Mr. Jakel with
34 The Court notes that Mr. Winter’s response to the District’s undisputed fact on
this point makes much of the fact that several of the component scores within Mr.
Winter’s evaluation, as opposed to the overall score of “2,” included scores of “4,”
meaning “exceeds expectations,” and “3,” meaning “meets expectations,” in a number
of areas. See Docket No. 40 at 6, ¶ 39. Mr. Winter, however, failed to raise these facts
when he had the opportunity to do so in his response brief as part of a section for either
additional undisputed facts or additional disputed facts. See Practice Standards (Civil
cases), Chief Judge Philip A. Brimmer, § III.F.3.b.v. Thus, these facts are not properly
before the Court on summary judgment. Moreover, even if the Court were to consider
the information, the overall rating of “2,” coupled with component scores of “2” in several
areas, would still undermine Mr. Winter’s argument that there were not performance
issues identified in his evaluation that would merit termination.
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comments regarding Mr. Winter’s job performance undermines any assertion by the
District that Mr. Jakel had made the termination decision in March 2023. Id. at 18-19.
As a preliminary matter, the fact of Ms. McConkey’s comments to Mr. Jakel is not
properly before the Court. The relevant email is cited by the District as one of several
exhibits supporting an asserted undisputed fact. See id. at 9, ¶ 60 (citing, among other
exhibits, Docket No. 34-22) and is cited by Mr. Winter several times in his responses to
the undisputed facts proffered by the District. See, e.g., Docket No. 40 at 8, ¶¶ 58-60.
However, because neither party identifies Ms. McConkey’s email as an undisputed fact,
the email cannot serve as a basis for creating a genuine dispute of material fact.
Moreover, even if the Court did consider this email, the Court finds that it would not help
Mr. Winter’s case. The email lists a variety of issues with Mr. Winter’s job performance.
See Docket No. 34-22 at 1-3. The issues listed in the email are similar to the
performance-related issues identified in the undisputed facts as occurring throughout
Mr. Winter’s employment. Compare Docket No. 34-22 at 1-3 with, e.g., Docket No. 34
at 7-8, ¶¶ 44-51. The email gives no indication that it provides information of which Mr.
Jakel was previously unaware. The Court finds that no reasonable juror could conclude
from this email that Mr. Jakel was seeking to fire Mr. Winter due to his disability or due
to an accommodation request made a week prior.
The temporal proximity between Mr. Winter’s request for blue-light glasses and
his termination also fails to create a genuine dispute of material fact regarding pretext.
“[T]emporal proximity alone is insufficient to raise a genuine issue of material fact
concerning pretext,” Proctor v. United Parcel Serv., 502 F.3d 1200, 1213 (10th Cir.
2007), and the facts surrounding the request for blue-light glasses do not permit any
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inferences of discriminatory motive on the part of Mr. Jakel or any other District
employee. Instead, the facts show that Mr. Jakel, upon receiving Mr. Winter’s April 25,
2023 request for an accommodation, offered Mr. Winter two potential solutions: using a
blue-light filter built into District computers or obtaining blue-light glasses through the
District’s vision insurance program. Docket No. 34 at 9-10, ¶¶ 64-65. Further, Mr. Jakel
suggested that Mr. Winter speak with Ms. Story, the District’s human resources director.
Id. at 10, ¶ 67. Mr. Jakel and Ms. Story discussed the request, and Ms. Story
researched the issue, determining that the District could purchase a lens cover for Mr.
Winter’s glasses. Id., ¶¶ 68-69. On April 25, 2023, before Ms. Story could discuss the
lens cover with Mr. Winter, Mr. Winter contacted Ms. Story to ask for a meeting. Id.,
¶ 70. On April 26, 2023, Ms. Story responded asking for dates and times to meet. Id.,
¶ 71. Although the meeting apparently did not take place, nothing about these facts –
which show a willingness on the part of Mr. Jakel and Ms. Story to accommodate Mr.
Winter’s need – provide a basis from which a reasonable juror could conclude that a
discriminatory basis is the more likely explanation for the District’s decision to terminate
Mr. Winter.
The Court finds that Mr. Winter has failed to raise a genuine issue of material fact
that the District’s basis for terminating Mr. Winter was pretextual. Given that, and given
the District’s proffered legitimate, non-discriminatory basis for termination, the Court
finds that the District is entitled to summary judgment on the ADA and CADA
discrimination claims.
B. Failure to Accommodate Claim
Mr. Winter alleges that the District failed to provide him with a reasonable
accommodation. Docket No. 9 at 6-9. For a failure-to-accommodate claim, Mr. Winter
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must allege 1) he was disabled within the meaning of the ADA, 2) he was otherwise
qualified for his job, 3) he requested a plausibly reasonable accommodation, and 4) the
District refused to accommodate his disability. See Aubrey, 975 F.3d at 1005. The
Tenth Circuit has explained that “[e]stablishing a prima facie claim is not onerous.” Id.
(citing Osborne v. Baxter Healthcare Corp., 798 F.3d 1260, 1266 (10th Cir. 2015)).
The District’s arguments regarding the failure-to-accommodate claim discuss
three potential accommodations: written instructions, noise-cancelling headphones, and
a blue-screen shield. See Docket No. 34 at 17-19. The Court will only discuss the
issue of written instructions. Mr. Winter’s complaint mentioned both the noise-
cancelling headphones and the blue-screen shield. See, e.g., Docket No. 9 at 2, ¶ 4.
However, in ruling on the District’s motion to dismiss, the Court found that Mr. Winter’s
only sufficient claim of a denied accommodation involved the request for written
instructions. See Docket No. 30 at 14 (“Mr. Winter does not allege why he requested a
blue screen shield and noise-cancelling headphones as necessary accommodations to
address memory issues and sequencing issues.”). Mr. Winter’s failure-to-accommodate
claim cannot survive summary judgment on a theory of denied accommodations that he
did not properly allege in the complaint. See Hutchison v. Ranch & Home Supply, LLC,
No. 23-cv-00999-PAB-KAS, 2025 WL 933808, at *10 n.23 (D. Colo. Mar. 27, 2025)
(finding, in a case involving the Family Medical Leave Act, that the plaintiff could not
assert at summary judgment that she suffered from a “chronic condition” when her
amended complaint alleged only that she was “undergoing continuous treatment.”); see
also Garrison v. Admin. Comm. of Delta Air Lines, Inc., No. 20-cv-01921-NYW, 2023
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WL 2163566, at *10 (D. Colo. Feb. 22, 2023).35 Thus, the Court will consider only
whether Mr. Winter’s claim survives based on a failure of the District to accommodate
Mr. Winter’s request for written instructions.
The District asserts that Mr. Winter asked for written instructions to aid him in his
job duties and that, in response to that request, Mr. Jakel provided Mr. Winter with
checklists detailing the instructions for specific tasks and assisted Mr. Winter in using
those checklists. Docket No. 34 at 18. The Court understands Mr. Winter to make two
arguments as to why his request for the reasonable accommodation of written
instructions was not met. Docket No. 40 at 14-17, 19.
The first of these arguments centers on the fact that Mr. Jakel, when recounting
in his deposition his conversation with Mr. Winter about Mr. Winter’s mental limitations,
stated “I don’t remember discussing a disability.” See Docket No. 40-3 at 1, 48:2-6. Mr.
Jakel’s statement was in response to the question, “[D]o you recall when you first
learned of Mr. Winter’s disability?” See id. Mr. Winter argues that, based on this
statement, no interactive process occurred. Docket No. 40 at 19. As a threshold
matter, Mr. Winter did not allege Mr. Jakel’s deposition answer as an additional
undisputed or disputed material fact, as required by the Court’s practice standards.
Practice Standards (Civil cases), Chief Judge Philip A. Brimmer, § III.F.3.b.v. But, in
order to address fully Mr. Winter’s arguments, the Court will consider it.
35 For the same reasons, the Court rejects what appears to be an attempt by Mr.
Winter in the response brief to assert that he requested the reasonable
accommodations of “patience (i.e., extra time to complete tasks)” and “assistance with
the ticketing system.” See Docket No. 40 at 15.
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The requirement for an employer to engage in an interactive process is “inherent
in the statutory requirement that the employer offer a disabled, but otherwise qualified
employee a reasonable accommodation.” Aubrey, 975 F.3d at 1007 (citations omitted).
“The interactive process requires the good faith participation of both the employer and
employee.” Id. (emphasis omitted). Although the exact shape of the interactive process
“will necessarily vary from situation to situation and no rules of universal application can
be articulated,” the process must include “good-faith communications between the
employer and employee.” Bartee v. Michelin N. Am., Inc., 374 F.3d 906, 916 (10th Cir.
2004) (citing Smith v. Midland Brake, Inc., 180 F.3d 1154, 1172-73 (10th Cir. 1999)).
Here, Mr. Winter informed Mr. Jakel and others that he struggled with memory,
completed tasks slowly, and had been diagnosed with PTSD and brain damage.
Docket No. 34 at 4, ¶¶ 16-17. Mr. Jakel and Mr. Winter discussed Mr. Winter’s needs.
Id., ¶ 19. Mr. Jakel asked what Mr. Winter needed to do his job, and Mr. Winter stated
that he benefits from written instructions, including checklists. Id., ¶ 20. Mr. Jakel and
others then provided Mr. Winter with written instructions and checklists to perform his
job duties, including instructions for changing passwords on computers, a checklist and
instructions for re-imaging computers, a computer troubleshooting flowchart, and
several other checklists. Id. at 4-5, ¶¶ 21-22. Mr. Winter also told Mr. Jakel that he
would learn and remember things better if Mr. Winter took notes and developed his own
checklists. Id. at 5, ¶ 23. Mr. Jakel and others allowed Mr. Winter to take notes,
reminded Mr. Winter to take notes when they observed he was not doing so, and
supported him in the development of his own checklists. Id., ¶ 24. When, over a year
into the job, Mr. Winter continued to have performance issues, Mr. Jakel advised Mr.
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Winter to work on taking accurate notes, to organize his notes better, and to work
through the checklists that the District had provided and that Mr. Winter had created. Id.
at 6-7, ¶¶ 38-40. Despite the fact that Mr. Jakel apparently did not consider Mr. Winter’s
diagnoses of PTSD and brain damage to be a “disability,” the Court finds that no
reasonable juror could conclude that Mr. Jakel’s actions provided anything less than the
kind of good-faith engagement that constitutes an interactive process. See Bartee, 374
F.3d at 916. The Court thus rejects Mr. Winter’s argument on this point.
Mr. Winter’s second argument is that the checklists he received were “form
checklists” and were not customized to his needs or the result of any collaboration
between Mr. Winter and other District employees. Docket No. 40 at 15-16. The Court
understands this to be an argument that the accommodation that the District provided
was not a reasonable one. Mr. Winter has not identified any evidence that he asked for
customized instructions or expressed a concern regarding the sufficiency of the
checklists provided to him. Even if he did, the question is not whether the
accommodation Mr. Winter received is the exact one he requested. Rather, the Court
must consider whether the accommodation Mr. Winter received was reasonable. See
Midland Brake, 180 F.3d at 1177-78 (holding that an employer is not obligated to
provide the employee the accommodation he or she requests or prefers; the employer
need only offer a reasonable accommodation). Although he complains that the
instructions and checklists were not the result of a collaborative process, Mr. Winter has
not identified any deficiencies with the instructions and checklists he received. Thus,
the Court finds that Mr. Winter has failed to create a genuine dispute of material fact as
to whether the District refused to accommodate his disability. The Court will therefore
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grant summary judgment to the District on the ADA and CADA failure-to-accommodate
claims.
IV. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion for Summary Judgment [Docket No. 34] is
GRANTED. It is further
ORDERED that the claims in plaintiff’s Amended Complaint [Docket No. 9] are
DISMISSED with prejudice. It is further
ORDERED that this case is closed.
DATED February 24, 2026.
BY THE COURT:
s/ Philip A. Brimmer___________
PHILIP A. BRIMMER
Chief United States District Judge
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