Opinion
Civil Action No. 18-cv-01649-REB-KMT
05-14-2019
ALLYSA POTESTIO, Plaintiff, v. THE COLORADO STATE BOARD FOR COMMUNITY COLLEGES AND OCCUPATIONAL EDUCATION, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on "Defendant's Motion to Dismiss the First Amended Complaint" (Doc. No. 32 [Mot.], filed November 27, 2018). Plaintiff filed her response on December 18, 2018 (Doc. No. 34 [Resp.]), and Defendant filed its reply on December 21, 2018 (Doc. No. 35 [Reply]).
STATEMENT OF THE CASE
Plaintiff filed this case asserting violations of the Americans with Disabilities Act ("ADA") of 1990, 42 U.S.C. § 12101, et seq., and Section 504 of the Rehabilitation Act, § 29 U.S.C. § 701, et seq. (See Doc. No. 30, 1st First Am. Compl. [Am. Compl.].) Plaintiff, who is a 28-year-old former student at Pueblo Community College ("PCC"), states she has an eye defect that developed after premature birth, leaving her with only one-third retina in each eye. (Id., ¶ 13.) Plaintiff states she is legally blind and, as such, is a qualified person with a disability as defined under the ADA. (Id., ¶¶ 14, 18.)
Plaintiff states PCC is a two-year institution for higher learning education that receives federal funding. (Id., ¶¶ 19-20.) Colleges and universities are required by Section 504 of Title II of the ADA to provide students with disabilities with appropriate academic adjustments and auxiliary aids and services necessary to afford an individual with a disability an equal opportunity to participate in the school's programs. (Id., ¶ 21.)
Plaintiff alleges prior to being officially accepted into PCC, she was required to take the AccuPlacer Test; however, due to her visual issues, she was not able to pass the timed test on the computer, and PCC had no alternative test for Potestio to take. (Id., ¶¶ 24-25.) Rather, PCC required her take numerous remedial courses to attend the college. (Id., ¶ 25.) In the fall of 2009, Plaintiff began attending PCC with the goal of becoming a Physical Therapist Assistant ("PTA"). (Id., ¶ 23.)
PCC has a Disability Resource Center ( "DRC") that works with students who have a documented disability. (Id., ¶ 26.) 28. The DRC assists students with disabilities, makes reasonable accommodations for them, and provides them equal access to educational opportunities offered through PCC. (Id., ¶ 28.) The DRC accepts responsibility for providing equal access to post-secondary education, the right to non-discrimination, the right to have reasonable accommodations, as well as the right to have the student's disability kept confidential. (Id., ¶ 29.) The DRC also notifies students of what the essential functions of educational and training programs are to facilitate the students' educational experience by providing reasonable accommodations, while at the same time creating the best opportunities for success and graduation in the respective programs. (Id., ¶ 30.) Plaintiff states that, from the very start of her educational journey at PCC, Plaintiff has been under a Letter of Accommodation documenting her disability, which is a requirement for working with the DRC. (Id., ¶ 31.)
Between 2009 and 2014, Plaintiff took numerous classes that were required for PTAP. (Id., ¶ 34.) In June of 2014, Plaintiff started working with the Division of Vocational Rehabilitation ("DVR"), which assists individuals with disabilities to find work and live independently. (Id., ¶¶ 35-36.) The DVR Counselor who was assigned to assist Plaintiff advised her that she needed to check the essential functions of the Physical Therapy Assistant Program ("PTAP") because, in her opinion, Plaintiff would not be able to meet those essential functions due to her disability. (Id., ¶¶ 37-39.) Plaintiff had already spent more than five years working towards admission into PTAP, had worked continuously with the DRC during that time, and the DRC was aware of Plaintiff's courses and her goal of becoming a PTA. (Id., ¶¶ 35-36.) Plaintiff and her parents then met with Rebecca Wasil, disability advisor of the DRC, and explained to her what they had learned from the DVR. (Id., ¶ 40.) Plaintiff alleges Ms. Wasil was completely unaware of the essential functions of PTAP. (Id., ¶ 40.) Plaintiff then contacted the department head of PTAP, Peggy Oreskovich, who stated that Plaintiff would not qualify for the program due to her visual disability. (Id., ¶ 47.)
Following this discussion, Plaintiff inquired into the Occupational Therapy Assistant Program ("OTAP"). (Id., ¶¶ 35-36.) Plaintiff met with the head of the OTAP, Tricia Vigil, who stated that she would meet their essential functions without accommodation, and that she would "work with her." (Id., ¶ 49.) In the fall of 2014, Plaintiff began taking prerequisites, and completing the necessary requirements for admission into OTAP. (Id., ¶ 50.) To gain acceptance into the OTAP, students must partake in an interview with the department head, Tricia Vigil, along with other faculty members and members of the OT community. (Id., ¶ 52.) This interview counts as 60% of the criteria weight that is used by the OTAP faculty interview panel in determining which students are accepted. (Id., ¶ 53.) Plaintiff's interview with the faculty interview panel lasted approximately 15 minutes. (Id., ¶ 54.) However, in the spring of 2015, Plaintiff was denied admission to the OTAP. (Id., ¶ 51.) After her denial into the program, Plaintiff emailed the department head, Tricia Vigil, to ask her what she could do to enhance her appeal as a candidate; Plaintiff never received a response. (Id., 55-56.)
Plaintiff continued taking classes associated with OTAP, including classes related to the medical field and pediatrics, in which she wanted to specialize. (Id., ¶ 57.) Plaintiff also sought permission, after applying in 2016, to take some of the OTAP classes themselves to enhance her application. (Id., ¶ 58.) In the spring of 2016, Plaintiff again applied for entrance into the program and was again denied admission after a 15-minute interview and despite her 3.00 grade point average, good references, and volunteer experience. (Id., ¶¶ 59-61.) After her second denial into the program, Plaintiff contacted Tricia Vigil and asked to meet with her regarding her denial into the program. (Id., ¶ 62.) Tricia Vigil did meet with the Plaintiff but told Plaintiff that the reason she was denied entrance into the OTAP was due to her "energy." (Id., ¶¶ 63-64.) Plaintiff and her mother were told by Ruth White, a Career Transfer Advisor for PCC, that the reason why she was denied entrance into the program was probably due to how she "looked at the admission panel" during her admission interview. (Id., ¶67.) Ms. White also told Plaintiff that if she did not get into the OTAP a second time, then she should not make a third attempt, that Plaintiff probably "did not have the personality they are looking for," and recommended that Plaintiff become a bartender or a hair dresser. (Id., ¶¶ 72-74.)
Plaintiff and her mother also met with Bonnie Housch, Academic Excellence Advisor, and she recommended that Plaintiff practice her interviewing skills and expressed surprise that Plaintiff's interview was so short as interviews with the faculty panel typically last upwards of an hour. (Id., ¶¶ 68-69.) In addition, Ms. Housch told Plaintiff and her mother that in 2014 Bonnie Clark, DRC Coordinator, had requested copies of the essential functions for all programs, and Ms. Housch said to Plaintiff, "I assume that was due to you." (Id., ¶ 70.)
During the summer of 2016, after her second denial into the OTAP, Plaintiff contacted Chantal Woodyard, a disability advocate who conducts national training seminars on the A.D.A. (Id., ¶ 75-76.) Ms. Woodyard inquired as to the eligibility requirements for the OTAP. (Id., ¶ 77.) Ms. Woodyard first contacted Bonnie Clark of the DRC, who still did not know the eligibility requirements for the OTAP, so she referred Ms. Woodyard to Ms. Vigil. (Id., ¶ 78.) Plaintiff alleges after those inquiries by Ms. Woodyard, the OTAP essential functions were rewritten to change the visual ability requirements in a manner that prevents Plaintiff from applying to the OTAP a third time. (See id., ¶¶ 79-85.)
Plaintiff also alleges Defendants have failed to provide reasonable accommodations to Plaintiff throughout her time at PCC, including failing to provide reasonable accommodations such as enlarging study materials, placing books on a CD, reading tests to Plaintiff, and replacing classroom aides who were not taking notes for Plaintiff as requested. (Id., ¶¶ 91, 93.) Plaintiff also alleges Sharon Mott, A.T. Instructor at the DRC, repeatedly made negative, intimidating, discriminatory and humiliating comments towards Plaintiff calling her "Eeyore," the cartoon donkey in the Winnie the Pooh series, during the Spring 2014 semester while acting as Plaintiff's classroom aide for Biology 106 and during the spring 2014 semester when she was instructor for Word Processing/Assistive Technology. (Id., ¶¶ 97, 102.) Plaintiff also alleges at some unspecified time she was excluded from participating as a volunteer to shadow one of her instructors, Mikala Caruso, who is an Occupational Therapist Assistant, after Ms. Caruso asked for volunteers. (Id., ¶111-14.)
Plaintiff states she has been bullied, harassed, and intimidated by instructors and classroom aides during her time at PCC, which has caused her "emotional distress, mental anguish and psychic harm, including but not limited to humiliation, degradation, and depression." (Id., 116, 118.) Plaintiff seeks declaratory and injunctive relief and money damages. (Id., Section VI. Relief Requested.)
Defendants move to dismiss Plaintiff's case in its entirety. (See Mot.)
STANDARDS OF REVIEW
A. Lack of Subject Matter Jurisdiction
Federal Rule of Civil Procedure Rule 12(b)(1) empowers a court to dismiss a complaint for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction "must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking." See Basso, 495 F.2d at 909. The dismissal is without prejudice. Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006); see also Frederiksen v. City of Lockport, 384 F.3d 437, 438 (7th Cir. 2004) (noting that dismissals for lack of jurisdiction should be without prejudice because a dismissal with prejudice is a disposition on the merits which a court lacking jurisdiction may not render).
A Rule 12(b)(1) motion to dismiss "must be determined from the allegations of fact in the complaint, without regard to mere conclusionary allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). When considering a Rule 12(b)(1) motion, however, the Court may consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Where a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's "factual allegations . . . [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.
B. Failure to State a Claim upon Which Relief Can Be Granted
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).
"A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.
Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S at 678. Moreover, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (citation omitted).
In evaluating a Rule 12(b)(6) motion to dismiss, the court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Tellabs, Inc, 551 U.S. at 322; Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records, including court transcripts, are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 F. App'x 691, 693 (10th Cir. 2003).
ANALYSIS
A. Declaratory and Injunctive Relief
Plaintiff seeks equitable relief under the ADA and the Rehabilitation Act. (See Compl. at 15, ¶¶ 1-2.) Article III's "cases" and "controversies" limitation requires that "an actual controversy ... be extant at all stages of review, not merely at the time the complaint is filed." Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks omitted). "The hallmark of a moot case or controversy is that the relief sought can no longer be given or is no longer needed." Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983). In other words, the relief sought must have some effect in the real world. Kennecott Utah Copper Corp. v. Becker, 186 F.3d 1261, 1266 (10th Cir.1999).
In her Complaint, Plaintiff states she is a former student at PCC. (Compl., ¶ 1.) Moreover, there is no indication in her Complaint that she has an intention of returning to the school. As such, she is not susceptible to continued injury, and there is no current dispute presented that is "definite, concrete, and amenable to specific relief," as required by law. Jordan v. Sosa, 654 F.3d 1012, 1024 (10th Cir. 2011) (internal quotation marks omitted). Accordingly, claims for equitable relief should be dismissed as moot. See Rhodes v. S. Nazarene Univ., 554 F. App'x 685, 689 (10th Cir. 2014) (dismissing claims against university for equitable relief as moot despite the plaintiff's argument that it was not his choice to leave the university).
B. Statute of Limitations
The parties do not dispute that a two-year statute of limitations applies to ADA and Rehabilitation Act claims. Hughes v. Colo. Dep't of Corr., 594 F.Supp.2d 1226, 1235 (D. Colo. 2009); Ulibarri v. City & Cnty. of Denver, 742 F.Supp.2d 1192, 1213 (D. Colo. 2010). "In general . . . claims accrue and the statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action." Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004). "A plaintiff has reason to know of his injury when he should have discovered it through the exercise of reasonable diligence. Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994).
Defendant argues that because Plaintiff filed her initial complaint on June 28, 2018 (Doc. No. 1), she may not rely upon or recover damages from any alleged conduct on Defendant's part that occurred prior to June 28, 2016. (Mot. at 5.) Thus, Defendants argue all of Plaintiff's claims other than her allegation that a classroom aide repeatedly used earbuds and surfed the internet instead of taking notes for Plaintiff in the Spring of 2017 (Am. Compl., ¶¶ 110-111) are barred by the statute of limitations. (Mot. at 7.) Plaintiff does not disagree that claims related to incidents before June 28, 2016 are barred by the statute of limitations, but rather argues that her claims are related to the defendant's "re-writing of the program requirements [in the Fall of 2017] in such a way as to permanently exclude" her, and that the "individual instance[s] of discrimination and mistreatment" alleged in her compliant are evidence of a "pattern of behavior, illustrative of the endemic deliberate indifference to those with disabilities, and through which Plaintiff persevered" until the defendant re-wrote the program. (Resp. at 4.)
Defendant argues that to the extent Plaintiff relies on the continuing violation theory, the theory does not apply to acts outside of the statute of limitations period. (Mot. at 6-7.) The continuing violation theory "is a creation of federal law that arose in Title VII cases." Thomas v. Denny's, Inc., 111 F.3d 1506, 1513 (10th Cir. 1997). The theory "permits a Title VII plaintiff to challenge incidents that occurred outside the statutory time limitations of Title VII if such incidents are sufficiently related and thereby constitute a continuing pattern of discrimination . . . ." Hunt v. Bennett, 17 F.3d 1263, 1266 (10th Cir. 1994). "Typically, this doctrine applies to hostile work environmental claims." Hamer v. City of Trinidad, No. 16-cv-02545-NYW, 2017 WL 5969815, at *8 (D. Colo. Dec. 1, 2017). "In this context, such claims are 'composed of a series of separate acts that collectively constitute one 'unlawful employment practice[,]' meaning the discriminatory conduct 'cannot be said to occur on any particular day.' " Hamer, 2017 WL 5969815, at *8 (citations omitted).
Plaintiff insists she is not relying on the continuing violation theory. (Resp. at 3-4.) However, the court agrees with Defendant that the allegations in the Amended Complaint (see Am. Compl, ¶ 92 ["The injury sustained by Plaintiff was intentional and continuing."]) and Plaintiff's response belie that contention.
The Tenth Circuit has rejected the continuing violation theory's application to discrimination claims pursuant to 42 U.S.C. § 1981, see Harris v. Allstate Ins. Co., 300 F.3d 1183, 1193 n.2 (10th Cir. 2002), and has never "formally adopted the continuing violation doctrine for § 1983 actions," Gosselin v. Kaufman, 656 F. App'x 916, 919 (10th Cir. 2016), or Bivens claims, see Silverstein v. Fed. Bureau of Prisons, No. 07-CV-02471-PAB-KMT, 2011 WL 4552540, at *9 (D. Colo. Sept. 30, 2011). The Tenth Circuit also has not adopted the continuing violation theory in the context of Title II.
In the Tenth Circuit, even in Title VII cases, where the continuing violation doctrine is recognized, plaintiffs are "expressly precluded from establishing a continuing violation exception for alleged discrete acts of discrimination occurring prior to the limitations period, even if sufficiently related to those acts occurring within the limitations period." Davidson v. Am. Online, Inc., 337 F.3d 1179, 1185 (10th Cir. 2003); see also Daniels v. United Parcel Serv., Inc., 701 F.3d 620, 628 (10th Cir. 2012) ("When a complaint alleges multiple discrete acts, the limitations period runs separately for each act."). The continuing violation theory "is triggered by continual unlawful acts, not by continual ill effects from the original violation." Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011) (internal quotation omitted).
The only allegations that fall within the limitations period are what Plaintiff now characterizes as her primary complaint—Defendant's re-writing of the essential functions portion of the Occupational Therapy Assistant Program (Am. Compl., ¶¶ 79, 84-85)—and her allegation that she was assigned a classroom aide who repeatedly had ear buds in her ear while surfing the internet instead of taking notes for Plaintiff (Am. Compl., ¶ 110). Plaintiff's complaints related to her attendance in the PTAP from 2009 through 2014 and her allegations that she was denied admission to the OTAP do not relate to either of the allegations that are within the limitations period.
Accordingly, any allegations regarding incidents that occurred prior to June 28, 2016 are time barred and should be dismissed with prejudice.
C. Failure to State a Claim
Title II of the ADA commands, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity[.]" 42 U.S.C. § 12132. A viable claim under the ADA requires Plaintiff to prove (1) she is a qualified individual with a disability; (2) she was excluded from participation in or the benefits of the defendant's services, programs, or activities; and (3) such exclusion was due to her disability. J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1295 (10th Cir. 2016). "The ADA requires more than physical access to public entities: it requires public entities to provide 'meaningful access' to their programs and services." Robertson v. Las Animas Cnty. Sheriff's Dep't, 500 F.3d 1185, 1195 (10th Cir. 2007) (emphasis in original).
Likewise, Section 504 of the Rehabilitation Act prohibits exclusion from the participation in, the denial of benefits to, or the discrimination of a "qualified individual with a disability . . . under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). In addition to the three elements identified under the ADA, a viable RA claim requires Plaintiff to prove that the "program or activity" receives federal funding. See Hollonbeck v. U.S. Olympic Comm., 513 F.3d 1191, 1194 (10th Cir. 2008). "Because these provisions involve the same substantive standards, [courts] analyze them together." Miller ex rel. S.M. v. Bd. of Educ. Of Albuquerque Pub. Sch., 565 F.3d 1232, 1245 (10th Cir. 2009) (citation omitted); see Kimber v. Thiokol Corp., 196 F.3d 1092, 1102 (10th Cir. 1999) ("Because the language of disability used in the ADA mirrors that in the Rehabilitation Act, we look to cases construing the Rehabilitation Act for guidance when faced with an ADA challenge.").
To recover compensatory damages under Section 504, a plaintiff must establish that the agency's discrimination was intentional; this does not require "a showing of personal ill will or animosity toward the disabled person; rather, 'intentional discrimination can be inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights.' " Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1228-29 (10th Cir. 2005) (citation omitted). Intent may be established by evidence of "deliberate indifference": i.e., "(1) knowledge that a harm to a federally protected right is substantially likely, and (2) a failure to act upon that ... likelihood." Barber ex rel. Barber v. Colorado Dept. of Rev., 562 F.3d 1222, 1229 (10th Cir. 2009) (internal quotation marks omitted).
The law with respect to Title II of the ADA is not as well established. Moseley v. Bd. of Educ. of Albuquerque Pub. Sch., 483 F.3d 689, 693 (10th Cir. 2007). --------
Defendant argues that Plaintiff fails to state a claim for either an ADA or Rehabilitation Act violation. Plaintiff argues that the court should focus on the aggregate of Plaintiff's allegations when deciding whether she has stated a claim. (Resp. at 8.) However, as determined supra, the only allegations that fall within the statute of limitations are the allegation that Defendant rewrote the essential functions portion of the Occupational Therapy Assistant Program (Am. Compl., ¶¶ 79, 84-85) and the allegation that Plaintiff was assigned a classroom aide who repeatedly had ear buds in her ear while surfing the internet instead of taking notes for Plaintiff (Am. Compl., ¶ 110). Thus, the court need not consider allegations that fall outside the statute of limitations or the argument that Plaintiff fails to state a claim regarding the allegations that fall outside of the statute of limitations.
Plaintiff alleges that during the summer of 2016, after a disability advocate discussed the OTAP eligibility requirements with the head of the OTAP on Plaintiff's behalf, the OTAP essential functions were rewritten to change the visual ability requirements in a manner that prevents Plaintiff from applying to the OTAP a third time. (See id., ¶¶ 79-85.) However, these allegations, standing alone and without considering the allegations outside of the statute of limitations, do not support a claim, nor do the allegations prompt the court to draw the inference, Iqbal, 556 U.S. at 678, that the defendant rewrote the program requirements solely because of Plaintiff's claimed disabilities. This claim must fail without this necessary factual basis. See Sutherlin v. Indep. Sch. Dist. No. 40, 960 F.Supp.2d 1254, 1267 (N.D. Okla. 2013).
As to Plaintiff's allegations that she was assigned a classroom aide who was less than diligent, these allegations also do not establish that Plaintiff was excluded from participation or denied the benefit of access to access to educational opportunities. A reasonable accommodation need not be "perfect," nor the "one most strongly preferred" by the plaintiff. Dean v. U. at Buffalo Sch. of Med. and Biomedical Scis., 804 F.3d 178, 189 (2d. Cir. 2015). Plaintiff's allegations, even taken as true, at most show that she was provided less-than-perfect accommodations; however, Plaintiff does not allege that she was unable to perform the necessary classwork because of the classroom aide or how she was ultimately denied a meaningful opportunity to participate in her education because of the classroom aide.
Accordingly, Plaintiff has failed to state a claim under either the ADA or Rehabilitation Act.
The court need not address Defendant's remaining arguments.
WHEREFORE, for the foregoing reasons, this court respectfully
RECOMMENDS that "Defendant's Motion to Dismiss the First Amended Complaint" (Doc. No. 32) be GRANTED.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. "[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (stating that a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); One Parcel of Real Prop., 73 F.3d at 1059-60 (stating that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (holding that cross-claimant had waived its right to appeal those portions of the ruling by failing to object to certain portions of the magistrate judge's order); Bee (holding that plaintiffs waived their right to appeal the magistrate judge's ruling by their failure to file objections). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (stating that firm waiver rule does not apply when the interests of justice require review).
Dated this 14th day of May, 2019.
BY THE COURT:
/s/_________
Kathleen M. Tafoya
United States Magistrate Judge