NINA Y. WANG, Magistrate Judge.
This matter comes before the court on Defendant Guaranty Bank and Trust Co.'s (the "Bank") Motion for Summary Judgment. [#32, filed June 23, 2015]. This court has carefully considered the Motion and related briefing, the entire case file, and the applicable case law. For the following reasons, I GRANT the Bank's Motion for Summary Judgment.
Plaintiff Marie D. Anderson ("Ms. Anderson" or "Plaintiff") initiated this action as a pro se litigant on May 30, 2014, asserting federal claims of discrimination on account of age and disability under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. 12101, et seq., and Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101, et seq. [#1]. Plaintiff seeks damages in the amount of $473,200.00. [#1 at 3].
The following facts are drawn from the Complaint. On November 24, 2009, Ms. Anderson took a leave of absence from the Bank due to a long-term disability. [#1 at 7]. On April 12, 2010, she returned to work with a medical restriction of needing to elevate her right leg 75 percent of the work day. Id. Plaintiff requested a sit-down work station, which she represents would have allowed her to comply with the restriction. Id. Ms. Anderson concedes that the Bank accommodated her disability, but alleges that the accommodation the Bank provided did not allow her to elevate her right leg as often as 75 percent of the day. Id.
In September 2012, Ms. Anderson, in her role as Operations Specialist, observed that two tellers had neglected to close the cash vault at the branch where she worked. [#1 at 7]. She admonished them that such a mistake could not happen again. Id. Plaintiff then arranged to have the armored service delivering cash to that branch ("Loomis") call ahead one hour prior to its arrival. Id. On October 4, 2012, Plaintiff, along with the Branch Operations Manager and Branch Sales Manager, observed that the cash vault was again impermissibly open. Ms. Anderson informed the Managers about the occurrence of an open vault the previous month, and "what steps [she] had taken to correct it." Id. On October 15, 2012, Ms. Anderson was terminated from her position at the Bank, and her superiors specified that she was discharged for failing to inform them of the open vault in September. [#1 at 6].
The Bank filed an Answer to the Complaint on August 7, 2014. [#12]. On October 28, 2014, the Parties consented to the jurisdiction of a United States magistrate judge. [#21]. The case was subsequently referred to Magistrate Judge Boland for all purposes pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D.C.COLO.LCivR 72.2. [#22].
On October 30, 2014, Judge Boland held a Scheduling Conference at which he ordered the Parties to complete discovery by May 19, 2015, file dispositive motions on or before June 23, 2015, and appear for a Final Pretrial Conference on August 27, 2015. [#23, #24]. The matter was reassigned to the undersigned Magistrate Judge on February 10, 2015. [#78].
On June 23, 2015, Defendant filed the instant Motion for Summary Judgment, consisting of 55 pages to which 22 exhibits are attached, for a total of 227 pages. [#32]. In a Minute Order dated June 30, 2015, this court ordered that a reply would not be permitted, on the basis that this civil action was initiated by a litigant proceeding pro se; the Complaint totals seven pages and consists of no more than ten paragraphs of factual allegations, and Defendant's Motion was excessive in its length. [#36]. Plaintiff failed to file a Response to the Motion despite a Minute Order specifying the deadline. [#35]. The docket does not indicate that the Minute Order was returned in the mail as undeliverable.
The Parties submitted separate Proposed Pretrial Orders, and the undersigned presided over a Final Pretrial Conference on August 27, 2015. [#40, #41, #42]. Due to the Parties' separate submissions, the court ordered the Parties to meet and confer and submit an additional proposed Final Pretrial Order, and indicated that to the extent that disputes still existed, it would set an additional Final Pretrial Conference. [#42].
Summary judgment is appropriate only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569 (10th Cir. 1994). "A `judge's function' at summary judgment is not `to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)). Whether there is a genuine dispute as to a material fact depends upon whether the evidence presents a sufficient disagreement to require submission to a jury or conversely, is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 248-49; Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136 (10th Cir. 2000); Carey v. U.S. Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). A fact is "material" if it pertains to an element of a claim or defense; a factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable party could return a verdict for either party. Anderson, 477 U.S. at 248. "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat. Bank of Ariz. v. Cities Service Com, 391 U.S. 253, 289 (1968)).
In reviewing a motion for summary judgment the court views all evidence in the light most favorable to the non-moving party. See Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1213 (10th Cir. 2002). However, the nonmovant must establish, at a minimum, an inference of the presence of each element essential to the case. Hulsey v. Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (citation omitted). When, as here, 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." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citation omitted). See also Anderson, 477 U.S. at 256 (The nonmovant "may not rest upon mere allegation or denials of his pleadings, but must set forth specific facts showing that there is a genuine issue for trial."). Conclusory statements based merely on speculation, conjecture, or subjective belief are not competent summary judgment evidence. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than "mere reargument of [her] case or a denial of an opponent's allegation" or it will be disregarded. See 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed.1998).
"A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). "The Haines rule applies to all proceedings involving a pro se litigant, including . . . summary judgment proceedings." Id. at n. 3 (citations omitted). However, the court cannot be a pro se litigant's advocate. Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008). "Although [o]ur summary judgment standard requires us to view the facts in the light most favorable to the non-moving party[,] it does not require us to make unreasonable inferences in favor of the non-moving party." Carney v. City & Cnty. of Denver, 534 F.3d 1269, 1276 (10th Cir. 2008) (quoting Starr v. Downs, 117 Fed. App'x. 64, 69 (10th Cir. 2004)). Because Ms. Anderson failed to file a Response to the Motion for Summary Judgment, the court deems the properly supported facts offered by the Bank as true. See Fed. R. Civ. P. 56(e)(2); Lammle v. Ball Aerospace & Techs. Corp., Case No. 11-cv-3248-MSK-MJW, 2013 WL 4718928, *1 (D. Colo. Sept. 1, 2013). In doing so, however, the court has reviewed the entirety of the exhibits submitted by Defendant to ascertain the context of such statements. Despite Ms. Anderson's lack of response, the court may not enter summary judgment unless the Bank carries its burden under Rule 56 of the Federal Rules of Civil Procedure. See Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir. 2002).
The court has reviewed the facts as submitted and, without a Response, construed to the best of its ability any disputed fact favorably to the nonmovant. The material facts are as follows.
Ms. Anderson is an individual who was 53 years of age when the events underlying the Complaint occurred. [#1 at 6]. The Bank is local to Colorado and operates twenty-six retail banking locations in the state; between 2009 and 2012, the Bank operated a retail banking location at 1050 South Hover Road, Longmont, Colorado ("Twin Peaks Branch") and 3561 Stagecoach Road, Longmont, Colorado ("Del Camino Branch"). [#32-2 at ¶¶ 4-5]. Laura Baggus is the Bank's current Vice President of Human Resources, and has held that position since January 2011. [#32-2 at ¶ 1]. She was previously Assistant Vice President of Human Resources, and has been employed by the Bank since August 31, 2006. Id. Dolores DiPetrillo ("Ms. DiPetrillo") was the Bank's Branch Manager for the Twin Peaks and Del Camino branches as well as a third branch. [#32-2 at ¶ 8]. Ms. DiPetrillo was physically present in each branch she managed "one to two times per week or about six to eight times per month." [#32-2 at ¶ 9]. Ms. DiPetrillo was born in 1968, and was thus approximately 42 and 43 years of age when the events underlying the Complaint occurred. [#32-2 at ¶ 10]. Stephanie Hardy ("Ms. Hardy") was the Bank's Branch Service Manager for the Twin Peaks and Del Camino branches as well as a third branch. [#32-14 at ¶¶ 1-2]. Ms. Hardy was physically present in each branch she managed "one or two time per week or about six to eight times per month." [#32-14 at ¶ 3]. Michael DiPetro ("Mr. DiPetro") was the Bank's Executive Vice President for Retail Banking, responsible for all of the Bank's branches in Colorado and would often approve courses of action related to the discipline or termination of employees. [#32-15 at ¶¶ 1-2]. Mr. DiPetro was born in 1964, and was thus approximately 46 and 47 years of age when the events underlying the Complaint occurred. [#32-15 at ¶ 3]. Kim Whaley ("Ms. Whaley") was the Bank's Senior Vice President for Branch Administration, responsible for implementing policies and procedures, ensuring policies were followed correctly, reviewing branch auditor reports to ensure compliance with policies and procedures, managing risk, and working closely with Human Resources on branch-related Human Resources issues. [#32-16 at ¶¶ 1-2]. Ms. Whaley was born in 1954, and was thus approximately 56 and 57 years of age when the events underlying the Complaint occurred. [#32-16 at ¶ 3]. Rebecca Adauto ("Ms. Adauto") was the Bank's Senior Vice President for Human Resources, responsible for addressing issues related to corrective actions and employee termination. [#32-18 at ¶ 2]. Employees at each branch of the Bank "fill[ed] various positions, including Teller, Financial Services Representative, and Operations Specialist." [#32-2 at ¶ 6].
The Bank has in place an EEO Statement prohibiting discrimination on the basis of age and disability, among other protected categories. [#32-2 at 14; #32-3 at 3]. The Bank also had in place a policy regarding accommodations of employees under the ADA. [#32-3 at 4]. The EEO Statement and ADA policy are included in the Employee Handbook that the Bank disseminated to its employees, including Ms. Anderson. [Id.] The Employee Handbook states that employment with the Bank is "at will," and that both the Bank and the employee have the right to terminate the employment relationship "with or without advance notice for any reason." [#32-3 at 2]. The Employment Handbook specifies than an employee's unsatisfactory performance or unacceptable conduct will be met with discipline ranging from "informal discussion to immediate termination, depending on the Company's opinion of the seriousness of the situation." [#32-4 at 5]. The Employee Handbook contains a section titled "Open Door Guidelines," which encourages employees to discuss work-related problems with their manager, a Human Resources representative, or upper management. [#32-4 at 9]. The Employee Handbook also includes a description of its reporting system called EthicsPoint, "which is an anonymous and confidential reporting tool to communicate misconduct and promote a positive work environment." [Id. at 6-7]. Throughout her employment with the Bank, Ms. Anderson acknowledged that she had received and read the Employee Handbook, understood her employment with the Bank to be at will, and understood the Bank's policies regarding discrimination and reporting problems. [#32-2 at ¶ 15; #32-5; #32-19 at 25:12-26:6, 32:14-34:2, 35:5-13].
The Bank additionally maintained policies and procedures on its internal Intranet, which employees could access at any time. [#32-19 at 39:1-10]. One of these policies was for, under which cash kept in a branch, typically in the vault, could be accessed only by two individuals each of whom had half the combination needed to open the vault ("offsets"). [Id. at 39:11-25]. These individuals were required to remain in the vault together at all times while the vault was open. Id. Plaintiff knew of and had understood the Dual Control policy since the beginning of her employment with the Bank, and acknowledged reading and understanding the policy as early as 2005. [Id. at 40:1-25; #32-2 at ¶ 16; #32-6]. In signing the policy, Plaintiff acknowledged that she must "inform the Security Department immediately" if she suspected her keys or combinations had been compromised, and that "failure to maintain adequate dual control, by not securing and safeguarding [] keys and combinations, will be cause for termination." [#32-6]. The Dual Control policy is encompassed in the Bank's Cash Control policy, which requires the vault to be locked at all times, except to remove or add excess currency. [#32-2 at ¶ 17; #32-19 at 46:18-47:1]. Ms. Anderson also understood and periodically reviewed the Bank's Keys and Combinations policy, which required in part that employees "report any breach of confidentiality involving combinations to a supervisor immediately," and instructed that "the company has zero tolerance for any wrongful actions, [and that employees should] report any unusual circumstances immediately." [#32-19 at 41:17-42:9; #32-2 at ¶ 18; #34-1]. Finally, the Bank Secrecy Act requires all banks to maintain a Customer Identification Program ("CIP"). The Bank's CIP policy required employees to obtain four specific pieces of verifiable identification from each Bank customer, without exception. [#32-2 at ¶ 19; #41-2, #41-3; #32-19 at 43:2-44:7-20]. Plaintiff attended annual Loss Prevention Trainings, where employees reviewed the Bank's cash control policies as well as the CIP policy. [#32-19 at 47:14-48:1].
Ms. Anderson began working for the Bank in April 2003 as a Financial Services Representative. [#32-19 at 20:5-6]. In 2008, Plaintiff began reporting to Ms. DiPetrillo. [Id. at 51:8-14; #32-2 at ¶ 8]. The following year, Plaintiff also began reporting to Ms. Hardy, whom the Bank had hired as Branch Service Manager for the Del Camino branch. [#32-19 at 51:15-21; #32-14 at ¶ 2].
In March 2009, Ms. Anderson was diagnosed with breast cancer, for which she underwent a lumpectomy in July 2009, chemotherapy treatments from September to November 2009, and radiation treatments from December 2009 until March or April 2010. [#23-19 at 49:10-13, 52:19-21, 54:14-19, 56:25-58:3; 58:19-59:5]. In December 2009, Plaintiff underwent surgery for a blood clot in her right leg. [Id. at 95:1-8]. On November 24, 2009, to accommodate and focus on her health, Plaintiff took medical leave from work through the Family and Medical Leave Act ("FMLA"). [Id. at 59:23-60-8; #43 at 13]. She exhausted her FMLA leave in February 2010; however, she was still receiving radiation treatments and utilizing a wheelchair, and her physician had not released her to return to work. [#23-19 at 60:9-15; 61:5-20]. Plaintiff testified that she had nonetheless offered to Ms. DiPetrillo that she would return in a wheelchair, and Ms. DiPetrillo had told her "not to worry about it . . . just [] get better." [Id. at 60:12-15]. Plaintiff was let go a few weeks after that phone call on the basis that she had exhausted her FMLA leave and had not been released to return to work. [#32-2 at ¶¶ 22-23]. At that time, Ms. Baggus informed Plaintiff that the Bank would re-hire her for a comparable position as soon as she furnished a release from her physician. [Id. at ¶ 24].
Ms. Anderson supplied a release to Ms. Baggus effective April 12, 2010, after which the Bank hired Plaintiff as a Senior Teller at the Twin Peaks branch at her same pay rate, with the benefits and credit for years of service which she had earned prior to taking FMLA leave. [#32-2 at ¶ 27; #32-19 at 60:21-24, 62:3-13, 63:9-12; #32-20 at 77:2-7; #32-8]. The medical release contained the following temporary work restrictions: "Seated with leg in elevated position. Start with 6 hrs/day, 5 days/week. Review after 2 weeks." [#32-20 at 66:1-67:11; 67:14-19; #32-2 at ¶¶ 25-26; #32-8]. Ms. Baggus attested that the Bank did not consider the restrictions permanent because the release provided for a review of Plaintiff's restrictions after two weeks. [#32-2 at ¶ 29]. When Plaintiff returned to the Bank, she worked a part-time schedule of 30 hours per week [#32-2 at ¶ 28; #32-19 at 65:24; #32-20 at 73:8-17]; she was situated in the drive-through station of the Twin Peaks branch and allowed to perform her teller duties from a high chair so as to elevate her leg. [#32-2 at ¶ 28; #32-14 at ¶ 5; #32-20 at 69:24-70:3, 70:19-71:5]. Plaintiff testified that at this station, she was required to stack kitchen chairs and bring her own pillows in order to elevate her leg. [#32-20 at 70:15-18]. After her first week, Ms. Anderson represented to Ms. DiPetrillo and Ms. Hardy that she was "getting through the day" in her part-time position, but expressed hesitation about returning to a full-time schedule and asked that she be moved to a sit-down teller station in the lobby of the branch. [#32-2 at ¶¶ 20, 30; #32-7; #32-14 at ¶¶ 6, 7]. Ms. DiPetrillo responded that the Bank could extend Plaintiff's part-time schedule for an additional two weeks. [#32-2 at ¶¶ 20, 30; #32-7; #32-14 at ¶ 6; #32-20 at 75:16-20]. Ms. Baggus and Ms. Hardy attested that during Plaintiff's part-time schedule, she never notified a member of management or Human Resources that her sit-down station in the drive-through was not adequately accommodating her work restrictions. [#32-2 at ¶ 33; #32-14 at ¶ 9].
On May 4, 2010, Ms. Anderson was cleared to return to work full-time, though the release stated she would need to "continue with the restriction of remaining seated with foot elevated at least 75% of the time," and should be re-evaluated in one month. [#32-2 at ¶¶ 35-36; #32-9; #32-20 at 80:24-81:16]. Plaintiff resumed a full-time schedule with the Bank on May 10, 2010. [#32-20 at 84:15-17]. She remained stationed in the drive-through, where, Ms. Baggus and Ms. Hardy attested, she could sit while performing her teller duties and elevate her leg 75 percent of the time. [#32-2 at ¶ 37; #32-14 at ¶¶ 10, 12]. Ms. Anderson did not return for evaluation after one month, did not provide the Bank with new restrictions, and never again raised the issue of an accommodation for her leg. [# 32-20 at 81:21-82:1; 83:17-84:2, 84:18-85:9; #32-2 at ¶ 38; #32-14 at ¶ 13]. She also did not contact EthicsPoint with a concern about her work restrictions. [#32-20 at 86:1-10].
In December 2010, Plaintiff was promoted from Senior Teller to Branch Operations Specialist. She was transferred to the Del Camino branch where she was responsible for the day-to day operations, including supervising tellers and financial services representatives, preparing reports, and conducting audits for the branch. [#32-20 at 86:15-19, 86:20-25; 87:19-25, 88:10-18, 91:21-24]. Plaintiff's official duties included the following: ensure "that all activities and work functions comply with compliance requirements as defined in company policies and procedures and state/federal laws and regulations"; perform "branch operational duties including: ensuring smooth daily workflow, reviewing various reports, guiding the operations team ensuring the duties of each position are performed according to established guidelines"; comply "with bank operations and security procedures by accurately adhering to and supporting all dual-control functions, auditing and other forms of certification." [#32-10; #32-2 at ¶ 39; #32-20 at 88:23-89:24, 89:25-90:5, 90:9-24]. One of Plaintiff's primary job duties was to complete a Monthly Certification Packet ("MCP"), which certifies certain activities and tasks, such as how many new accounts have been opened and the number of internal audits performed. [#32-20 at 118:10-119:5].
In her new position, Ms. Anderson continued to report to Ms. DiPetrillo and Ms. Hardy. [#32-20 at 91:13-20]. Ms. Hardy attested that Plaintiff struggled in the Operations Specialist role; she had difficulty learning new tasks, frequently submitted late reports, and had to be counseled regarding various issues. [#32-14 at ¶ 18]. In May 2011, Ms. Hardy counseled Plaintiff about an incident with a cash ticket. [#32-14 at ¶ 19; #32-2 at ¶ 20; #32-7 at 4]. The following month, Plaintiff confused her deposit limit as $100,000 when it was $500,000. [#32-14 at ¶ 20; #32-2 at ¶ 20; #32-7 at 5]. Ms. Hardy attested that Plaintiff struggled to complete the MCP accurately and on time, despite months of training, causing her and Ms. DiPetrillo to spend significant time correcting mistakes prior to finalizing the reports. [#32-14 at ¶¶ 22-24; #32-20 and #32-21 at 129:25-130:22].
In June 2011, Plaintiff experienced a blocked artery in her right leg, for which she underwent a bypass and took approximately six weeks of medical leave. [#32-20 at 95:10-24, 96:3-10; #32-2 at ¶ 41]. Ms. Anderson returned to work in late July 2011 with a medical release for full duty as tolerated, stating that Plaintiff "may need to elevate leg if swelling." [#32-20 at 96:16-19, 97:10-20; #32-2 at ¶ 42; #32-13]. Plaintiff furnished the release to Ms. DiPetrillo but did not ask for an accommodation for her leg. [#32-21 at 174:14-21; #32-14 at ¶ 16]. Plaintiff experienced swelling in her leg and elevated it when she could, but she made an effort to stand when she spoke with customers based on her own preferences. [#32-20 at 97:21-98:4, 99:17-100:1, 100:9-17].
Between August and December 2011 Ms. Anderson's condition improved; she walked twenty minutes on a treadmill, stood for prolonged periods at work, and took a vacation to the Galapagos Islands where she participated in a few short hikes. [#32-20 at 100:18-25, 105:24-107:17; 109:13-111:7; 111:14-112:7, 112:11-113:2; #34-4 at 11, 13, 15]. By March 2012, Plaintiff was "participating fully" in her work activities, including standing for long periods of time, and walking for exercise most days. [#32-20 at 113:15-115:6, 116:7-117:23; #32-21; #34-4 at 5, 8].
Following her return to the Bank in late July 2011, Plaintiff continued to struggle with her responsibilities as Operations Specialist, as documented in her annual employee performance review issued on February 6, 2012. [#32-2 at ¶ 40; #32-11 at 2, 3, 6; #32-14 at ¶ 25; #32-20 at 129:8-13; #32-21 at 130:23-131:4]. In particular, Plaintiff's managers wrote that "Marie has struggled with the required responsibilities of the Operations Specialist position. She can improve in this area by thoroughly completing the MCP without assistance and thoroughly gathering information required for the packet." [#32-11 at 2]. They further commented that "Marie is aware that improvement is needed in this area. It is recommended . . . that Marie creates a consistent routine to follow to assist in completing required, time sensitive branch tasks. She'll need to turn in her MCP's in a timely manner as well as set a positive and productive example for the branch staff." [#32-11 at 2-3; #32-21 at 131:14-23]. Plaintiff was indeed aware that improvement was needed in that area. [#32-21 at 131:5-13; 131:24-132:2].
Ms. Hardy attested that Plaintiff also struggled with understanding and following Bank policies throughout 2011 and 2012. [#32-14 at ¶ 26]. In September 2011, Plaintiff violated Bank policy by not confirming customers' birthdates on their signature cards. [#32-2 at ¶ 20; #32-7 at 8]. In February 2012, Plaintiff violated Bank policy in opening a new account without obtaining verification of the customer's social security number then failing to concurrently run a verification report. The verification report completed the following week called the customer's identity into question. [#32-2 at ¶ 20; #32-7 at 10-12; #32-14 at ¶ 27]. In March 2012, Mary Tigges, Vice President and Bank Secrecy Act Officer for Guaranty Bank, expressed concern that the Del Camino branch, under Plaintiff's supervision, had violated internal procedure by failing to complete Currency Transaction Reports ("CTRs") the same day as each transaction was conducted. [#32-7 at 13-14; #32-14 at ¶ 28]. Later that month, Plaintiff neglected to activate the alarm at her desk and missed participating in a test of all alarms conducted by the Bank; mismarked, along with another employee, a Loomis cash bag for $5,000 less that what it contained; and failed to adequately prepare the Bank for a Saturday shift, which caused only one teller to have a cash drawer for the Saturday drive-up hours. [#32-2 at ¶ 20; #32-7 at 15-17; #32-14 at ¶¶ 29-31; #32-21 at 139:12-140:5].
On April 4, 2012, Ms. DiPetrillo and Ms. Hardy met with Ms. Anderson to discuss various concerns, including the Loomis incident, the failure to properly prepare for the Saturday shift, the fact that the branch's open/close log and temporary key logs for the month of March were missing initials and were not corrected within a timely manner, and that "on several occasions, the branch had been left scrambling to balance the vault at the last minute and due to lack of planning, did not have the correct dual offsets to gain entrance to the vault." [#32-14 at ¶32]. They requested that Plaintiff be more careful and aware. [Id. at ¶ 33]. Later that month, Plaintiff failed to properly execute a "surprise cash audit," which is where an Operations Specialist completes an unannounced count of a teller's cash drawer. Assistant Vice President for Branch Administration Lee Ann Hudson observed Plaintiff inform a teller of the audit and permit the teller to enter the vault alone prior to the count. [#32-2 at ¶ 20; #32-7 at 18; #32-14 at ¶ 34]. Ms. Hudson reported this incident to Ms. Whaley, who then informed Ms. DiPetrillo and Ms. Hardy and noted that "Marie should really know better after all the training we have provided." [#32-2 at ¶ 20; #32-16 at ¶¶ 8-9; #32-14 at ¶ 34; #32-7 at 18]. Ms. DiPetrillo addressed the mistake with Plaintiff, who acknowledged her error. [#32-2 at ¶ 20; #32-7 at 18].
A June 18, 2012, email correspondence with Plaintiff regarding the process of opening a checking account for a new customer caused Ms. Whaley serious concern that Plaintiff did not understand the CIP policy and that familiarity with a client cannot replace CIP verification. [#32-16 at ¶ 10; #32-14 at ¶ 35; #32-2 at ¶ 20; #32-7 at 21-24]. Ms. Whaley subsequently communicated her concerns to Ms. DiPetrillo and Ms. Hardy. Id. Later that month, after receiving a call from Karen Scott, Vice President, Deposit Operations Manager, Ms. Whaley again expressed concern to Plaintiff's managers regarding Plaintiff's performance and understanding of Bank policies, and asked if they had other concerns. [#32-16 at ¶¶ 11-12; #32-14 at ¶ 35; #32-2 at ¶ 20; #32-7 at 19]. Ms. DiPetrillo responded that Ms. Hardy continued to assist Plaintiff in completing sections of the MCP, that Plaintiff continued to struggle as a leader in the branch, and that she and Ms. Hardy were concerned with Plaintiff's performance. [#32-16 at ¶ 13; #32-2 at ¶ 20; #32-7 at 19]. By July 2012, Ms. Hardy had been alerted to customer complaints that Plaintiff was abrasive, and employee complaints that Plaintiff was negative, unprofessional, and created unnecessary strife in the workplace. [#32-14 at ¶ 36].
Performance concerns and customer and employee complaints culminated in the Bank issuing a "Corrective Action" to Ms. Anderson on July 31, 2012. [#32-14 at ¶ 37; #32-2 at ¶ 40; #32-12]. The Corrective Action took issue with the following: late submissions of MCP packets; failure to timely complete surprise cash audits for the month; lack of organization, including misplacing the signature card for the branch's safe deposit box; lack of job knowledge; missed meetings; and a negative and abrasive demeanor toward customers and other employees. [#32-12; #32-14 at ¶ 38; 32-2 at ¶ 40]. The Corrective Action required Ms. Anderson to accurately and timely complete the MCP process, and to read the Key and Combination, CIP, and Stop Payment policies and discuss those with her managers. [#32-14 at ¶ 42; #32-2 at ¶ 40; #32-12; #32-21 at 148:11-17]. The Bank expressed to Plaintiff the expectation that she "demonstrate a thorough understanding of bank policies and procedures, make sound business decisions, and minimize unnecessary risk to the Bank," and that "failure to show immediate and sustained performance improvement or the occurrence of any other incidents of misconduct could result in further corrective action or termination of [Plaintiff's] employment." [#32-14 at ¶¶ 42-43; #32-2 at ¶40; #32-12; #32-21 at 146:21-147:12, 148:11-24].
On August 1, 2012, shortly after receiving the Corrective Action, Ms. Anderson informed Ms. Hardy that she did not understand how to compile teller aggregate totals for the Branch, a task which Ms. Hardy believed Plaintiff should have been comfortable performing after almost two years in the Operations Specialist position. [#32-14 at ¶ 44; #32-2 at ¶ 20; #32-7 at 26]. On October 1, 2012, Plaintiff violated CIP policy by failing to review the information for a new account within twenty-four hours opening the account, resulting in a "huge CIP exception." [#32-14 at ¶ 45; #32-2 at ¶ 20; #32-7 at 27].
On October 4, 2012, Ms. DiPetrillo and Ms. Hardy were present in the Del Camino branch and discovered that the door to the cash vault was unlocked. [#32-14 at ¶ 46; #32-21 at 149:1-6, 150:2-7]. When they informed Ms. Anderson of this, Plaintiff responded with disbelief that the employees would leave the vault door unlocked, again, and on a day when the managers were in the branch. [#32-14 at ¶ 47; #32-21 at 150:6-11, 152:2-5]. Plaintiff explained that "they" thought leaving the vault unlocked was acceptable because the employee with the offset to the vault had taken lunch during the time when Loomis was scheduled to arrive. [#32-14 at ¶ 48]. Ms. Anderson acknowledged that employees at her branch had previously left the vault unlocked, and she had not reported that transgression to management. [#32-14 at ¶ 49; #32-21 at 152:8-24, 159:8-23]. Plaintiff testified that she knew her employees had left the vault unlocked the previous month, but that she "thought [she] had taken care of that situation. And [she] was not aware that they were continuing to leave that vault open." [#32-21 at 149:1-150:11]. She further testified that she did not report the incident to her managers because she believed she had discretion in handling the situation. [#32-21 at 152:8-14].
Ms. Whaley attested that the failure to lock the vault constituted a "serious violation of numerous [Bank] policies, including the Cash Control policy and the Keys and Combinations Policy." [#32-16 at ¶ 15]. Following a report from Plaintiff's managers, Ms. Whaley conducted an investigation into the incident, which included interviewing several of the branch's employees. [#32-14 at ¶ 51; #32-16 at ¶¶ 14, 16-17; #32-22 at 178:4-6]. She learned from these employees that they regularly left the vault unlocked on Thursday afternoons, the day of the Loomis delivery, to accommodate the lunch break of whichever employee held an offset. [#32-16 at ¶¶ 17-22; #32-17]. The employees reported that this routine had been implemented with Plaintiff's full knowledge and agreement. Id. Ms. Whaley surmised from these interviews that Plaintiff's "inconsistent enforcement of Bank policies contributed to an atmosphere of confusion as to which policies were to be followed, and which were not," [#32-16 at ¶ 23], and concluded that Ms. Anderson knew of and condoned the employees' practice of leaving the vault unlocked. [#32-16 at ¶ 25; #32-21 at 177:9-13]. Ms. Whaley thereafter met with Mr. DiPetro and Ms. Aduato and decided, along with Ms. DiPetrillo and Ms. Hardy to terminate Plaintiff's employment with the Bank. [#32-16 at ¶¶ 27-28; #32-15 at ¶¶ 7-8; #32-18 at ¶¶ 6-7; #32-14 at ¶¶52, 54].
Ms. Anderson filed a charge of discrimination based on age and disability with the Colorado Civil Rights Division and the Equal Employment Opportunity ("EEO") Commission on April 22, 2013 [#1 at 6-7], and received her Right to Sue letter on March 3, 2014 [#1 at 4].
Courts within the Tenth Circuit generally consider disparate-treatment claims, such as those for age and disability discrimination, within the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1972). Hawkins v. Schwan's Home Service, Inc., 778 F.3d 877, 883 (10th Cir. 2015) (citing Davidson v. Am. Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003). The McDonnell Douglas burden-shifting analysis "may be unnecessary and inappropriate," however, where there is direct evidence of discrimination or where the employer acknowledges that the plaintiff's disability played a prominent role in the employment decision. Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n.3 (10th Cir. 1997). "Direct evidence demonstrates on its face that the employment decision was reached for discriminatory reasons." Riggs v. AirTran Airways, Inc., 497 F.3d 1108, 1117 (10th Cir. 2007) (brackets omitted) (internal quotation marks omitted). This evidence must "speak directly to the issue of discriminatory intent" as well as "relate to the specific employment decision in question." Chytka v. Wrigth Tree Service, Inc., 925 F.Supp.2d 1147, 1162 (D. Colo. 2013) (citation omitted). Ms. Anderson testified that Ms. DiPetrillo referred to the Twin Peaks branch as her "old lady branch" on three or four different occasions because "mostly elderly ladies" worked there. [#32-21 at 134:23-135:22, 144:15-24]. Comments in the workplace that reflect personal bias may qualify as direct discrimination if the speaker had decision making authority and acted on his or her discriminatory beliefs. Tabor v. Hilti, Inc., 703 F.3d 1206, 1216 (10th Cir. 2013) (citing Ramsey v. City & Cnty. of Denver, 907 F.2d 1004, 1007-08 (10th Cir. 1990)). Ms. DiPetrillo participated in the decision to fire Plaintiff, but there is no evidence in the record before me that she based her decision in whole or in part on Plaintiff's age. Indeed, during her deposition, Ms. Anderson could not recall ever hearing Ms. DiPetrillo comment negatively about an employee's age, and testified that Ms. DiPetrillo never made a negative comment about Plaintiff's age. [#32-21 at 192:1-6]. There is no evidence that Ms. DiPetrillo acted on any personal bias towards Plaintiff. Accordingly, Ms. Anderson has not established an incidence of direct discrimination and this court will analyze her unlawful termination claim pursuant to the McDonnell Douglas test.
Under the McDonnell Douglas test, "the critical prima facie inquiry in all cases is whether the plaintiff has demonstrated that the adverse employment action occurred under circumstances which give rise to an inference of unlawful discrimination." Plotke v. White, 405 F.3d 1092, 1100 (10th Cir. 2005) (citation and quotations omitted). The components of a prima facie case may vary depending on the nature of the claim. Id. See also Barlow v. C.R. England, Inc., 703 F.3d 497, 505 (10th Cir. 2012). As is appropriate here, Plaintiff must demonstrate that (1) she belongs to a protected class; (2) she was qualified and satisfactorily performing her job; and (3) she was terminated under circumstances giving rise to an inference of discrimination. See Barlow, 703 F.3d at 505. "Plaintiffs can establish evidence of the third prong in various ways, such as `actions or remarks made by decision makers, preferential treatment given to employees outside the protected class,' or `more generally, upon the timing or sequence of events leading to plaintiff's termination.'" Id. (quoting Plotke, 405 F.3d at 1101 (citation and quotation omitted)).
The prima facie burden is "slight," Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005), and, if demonstrated, requires the Bank to articulate a nondiscriminatory reason for the adverse employment action. See Barlow, 703 F.3d at 505. Plaintiff may then present evidence to show that the Bank's rationale is pretextual. See Fye v. Oklahoma Corp. Comm'n, 516 F.3d 1217, 1227 (10th Cir. 2008). In order to establish a genuine issue of material fact as to pretext, a plaintiff must produce evidence that a defendant's non-discriminatory reason is "unworthy of belief." Randle v. City of Aurora, 69 F.3d 441, 451 (10th Cir. 1995). "Mere conjecture that the employer's explanation is pretext is insufficient to defeat summary judgment." Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (citing Morgan, 108 F.3d at 1323).
Plaintiff claims the Bank terminated her because of her age; the Bank argues it terminated Plaintiff as a result of her unsatisfactory work. It is unlawful for any employer to refuse to hire, fire, or otherwise discriminate against an individual with respect to the compensation, terms, conditions, or privileges of her employment because of such individual's age. 29 U.S.C. § 623(a)(1). "To establish a disparate-treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the `but-for' cause of the employer's adverse decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009) (citing Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639, 653 (2008)) (further citation omitted). In this Circuit, while Plaintiff need not allege that her age was the sole motivating factor for her termination, she must allege that "age was the factor that made a difference" in causing the adverse action. Jones v. Oklahoma City Public Schools, 617 F.3d 1273, 1277-78 (10th Cir. 2010) ("an employer may be held liable under the ADEA if other factors contributed to its taking an adverse action, as long as age was the factor that made a difference").
The Bank has put forth a long, detailed, and well-documented history of Plaintiff's performance issues spanning almost two years. The record demonstrates that Ms. Anderson struggled continuously with several specific responsibilities of the Operations Specialist position, in particular completing the MCP accurately and on time, see, e.g., [#32-20 and #32-21 at 129:25-130:5, 130:9-22, 126:15-127:13, 147:23-148:1] and complying with CIP protocol, see e.g., [#32-7 at 8, 10-11; #32-14 at ¶ 27]. She was instructed as early as February 2012 on the importance of serving as a leader, being positive, and setting a productive example for her staff [#32-11 at 2-3], and yet was the subject of both customer and employee complaints in July 2012. [See #32-14 at ¶ 36]. Finally, she was found to have committed a "serious violation" of the Bank's Cash Control policy and the Keys and Combinations Policy when the vault at her branch was discovered unlocked. [#32-16 at ¶ 15]. This infraction was committed after the Bank warned her that "any other incidents of misconduct could result in further corrective action or termination of her employment." [#32-12]. Ms. Whaley attested that Ms. Anderson's "poor judgment and lack of compliance with policy posed too great a risk for the Bank to continue her employment." [#32-16 at ¶ 28]. A court "will not second guess business decisions made by employers, in the absence of some evidence of impermissible motives." Lucas v. Dover Corp., Norris Div., 857 F.2d 1397, 1404 (10th Cir. 1988) (citation omitted). Plaintiff has not met her burden of showing she was qualified for and satisfactorily performing her job. See Kirkland v. Safeway Inc., 153 F.3d 727, at *3 (10th Cir. July 10, 1998) (relying on record to show that at time of plaintiff's termination his performance did not meet his employer's legitimate expectations based on criteria in place at the time of termination).
Ms. Anderson testified to several older women leaving the Bank as proof of the Bank's age discrimination, and stated that these women were "replaced by 20-year-olds." [#32-21 at 190:3-7]. However, she acknowledged that these women either resigned or retired, and none were terminated. [#32-21 at 190:10-191:23]. Furthermore, Ms. DiPetrillo was older than 40 years of age at the time the Bank terminated Plaintiff, and three of the five individuals who participated in the decision to terminate Plaintiff were over 40 years of age at that time. [#32-2 at ¶10, #32-15 at ¶ 3; #32-16 at ¶ 3]. Although members of a protected class may at times discriminate against other members of that same class, Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75, 78 (1998), courts within and outside this Circuit have recognized that the inference of discrimination is weakened when the decision maker is within the protected class. See, e.g., Kitchen v. Burlington Northern and Santa Fe R. Co., 298 F.Supp.2d 1193, 1203 (D. Kan. 2004); Chan v. Donahoe, 63 F.Supp.3d 271, 294 (E.D.N.Y. 2014); Demesme v. Montgomery Cnty. Gov't, 63 F.Supp.2d 678, 683 (D. Md. 1999) ("The fact that the decision makers were of the same protected class suggests no discriminatory motivation.")
Because Plaintiff has not established a prima facie case of discrimination on account of her age, I need not proceed to the additional steps of the McDonnell Douglas analysis. However, even assuming that Plaintiff had established a prima facie case of age discrimination, the same facts offered by the Bank in arguing that Plaintiff failed to satisfy the prima facie showing that she was qualified for and satisfactorily performing her job also establish a legitimate, non-discriminatory reason for her termination that Ms. Anderson has not been rebutted as pretextual. See Morgan, 108 F.3d at 1323 (observing that once a defendant comes forward with a facially non-discriminatory reason for its action, the burden shifts to the plaintiff to establish a genuine issue of material fact that such proffered reason was pretextual, i.e. not worthy of belief). Under any analysis, Plaintiff has failed to demonstrate that there is a genuine issue of material fact that requires this case to proceed to trial.
The Complaint asserts a claim of discrimination on the basis of disability. [#1 at 2]. The ADA prohibits discrimination against disabled individuals. 42 U.S.C. § 12112(a). To state a prima facie case for discrimination under the ADA, Plaintiff must establish that (1) she is disabled; (2) she was qualified, with or without reasonable accommodation, to perform the essential function of her job; and (3) her employer discriminated against her because of her disability. Robert v. Bd. of County Comm'rs, 691 F.3d 1211, 1216 (10th Cir. 2012). Plaintiff bears the burden of raising a genuine issue of material fact on each element of her prima facie case. Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 495 (10th Cir. 2000).
The Bank argues that Ms. Anderson was not disabled, and as stated above, was terminated because her work performance was not satisfactory. The ADA Amendment Act of 2008 ("ADAAA"), went into effect on January 1, 2009 and broadened the definition of "disability."
As a preliminary matter, Plaintiff does not identify the major life activity that she contends was impaired. Morgan v. Goodwill Industries of Denver, Inc., No. 12-cv-00274-WYD-CBS, 2013 WL 6728777, at * 6 (D. Colo. Dec. 20, 2013) ("A plaintiff must identify the activity that [she] claims is impaired and establish that it constitutes a major life activity") (citing Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 147 (2d Cir. 2002)). Following a second medical leave of absence, Plaintiff returned to the Bank on July 25, 2011, capable of working full-time with the restriction that she "may need to elevate leg if swelling." [#43 at 13; #32-20 at 96:16-22, 97:10-25; #32-13]. She also suffered from foot pain. [#32-20 at 116:23-117:6]. To the extent she would argue she is substantially limited in the major life activity of working, she must show "significant[] restrict[ion] in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir. 1994) (citing 29 C.F.R. § 1630.2(j)(3)(i)), aff'd, 527 U.S. 471 (1999). Plaintiff does not dispute that she did not request a medical accommodation from the Bank following her return in July 2011 [#43 at 13], and she was able to work her full-time job at the Bank prior to her termination. [#32-21 at 197:14-16]. See Selenke v. Medical Imaging of Colorado, 248 F.3d 1249, 1257 (10th Cir. 2001) (affirming decision that plaintiff was not substantially limited in the major life activity of working in part based on plaintiff's acknowledgment that she was able to perform all the duties required of her job while she was employed). As to the substantial limitation of standing or walking, Plaintiff testified that while her leg swelled and she elevated it when she could, she chose to stand and shake hands when a customer approached her station. [#32-20 at 99:17-19, 100:9-17]. By March 2012, Plaintiff's pain had subsided, she was fully participating at work though was tired in the evenings, she stood on her feet for long stretches of time, and walked for exercise on her treadmill most days. [#32-20 at 113:16-115:6]. By May 2012 she fully participated at work and home and attempted to walk between 25 and 30 minutes each day for exercise. [#32-20 at 116:11-117:12]. An employee is generally not considered disabled where the impairment was temporary or short-term. See Morgan v. Goodwill, 2013 WL 6728777, at * 5 (collecting cases).
Even under the less demanding standard set forth in the ADAAA, Ms. Anderson cannot overcome summary judgment on this claim. There is no indication in the record that Ms. Anderson was disabled under the statute at the time of her termination. It is her "summary judgment responsibility to present evidence sufficient to meet her burden of production on the `disability' element of her prima facie case," and she has not done so. Allen v. SouthCrest Hosp., 455 Fed. Appx. 827, 833 (10th Cir. 2011). Even if I found that Plaintiff was disabled under the statute, there is no basis for finding that the Bank terminated her employment as the result of impairment. Construing the evidence in the light most favorable to the non-moving party, I do not find that Plaintiff has established a prima facie case of disability discrimination. And even assuming that Plaintiff could establish a prima facie case of disability discrimination, the Bank's undisputed facts regarding her work performance are sufficient to demonstrate a legitimate, non-discriminatory reason for her termination, shifting the burden back to Ms. Anderson to demonstrate that there is a genuine issue of material fact that the reason proffered by the Bank was pretextual. Having failed to proffer any evidence that the Bank's concerns about her performance were simply pretext to hide disability discrimination, Ms. Anderson's claim cannot survive summary judgment. See Morgan, 108 F.3d at 1323.
Ms. Anderson asserts the Bank denied her a reasonable accommodation on the following occasions: (1) Ms. DiPetrillo allegedly discouraged Plaintiff from attending a medical appointment in August 2009, though Plaintiff ultimately kept the appointment [#32-21 at 163:19-164:13, 170:22-171:3; #32-22 at 4-5]; (2) in early 2010, the Bank did not permit her to return to work prior to date designated in her medical release [#32-21 at 171:4-172:4; #32-22 at 4-5]; (3) the Bank placed Plaintiff in the drive-through at the Twin Peaks branch in April 2010 and refused to relocate her station to a desk in the lobby [#32-21 at 172:5-12; #32-22 at 4-5]; and (4) in May or June 2010, Ms. Baggus allegedly told Plaintiff that she was "selfish, ungrateful, hateful and the Bank did not have to hire [her] back." [#32-20 at 78:4-16; #32-21 at 172:13-19; #32-22 at 4-5].
The ADA requires a party to exhaust administrative remedies within 300 days or less of the alleged unlawful practice. See 42 U.S.C. § 2000e-5(e)(1). On April 22, 2013, Plaintiff timely filed her EEO complaint as to her claim for the October 15, 2012 unlawful termination. However, each discrete incident of allegedly discriminatory treatment constitutes its own "`unlawful employment practice' for which administrative remedies must be exhausted." Martinez v. Potter, 347 F.3d 1208, 1210 (10th Cir. 2003) (quoting National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) (abrogating the continuing violation doctrine as to claims of discriminatory or retaliatory action by employers such that a plaintiff is required to exhaust administrative remedies for each incident of violative treatment as a prerequisite to asserting a claim). Following Morgan, the plaintiff is barred "from suing on claims for which no administrative remedy had been sought, when those incidents occurred more than 300 days prior to the filing of plaintiff's EEO complaint." Id.
The denial of accommodation claim is supported by incidents that occurred prior to June 26, 2012, which is the latest date this court could consider based on the filing of the EEO complaint. Plaintiff has administratively exhausted the claim for the October 15, 2012 termination only, and the EEO complaint cannot be construed as exhausting a claim for the Bank's purported failures to accommodate between August 2009 and June 2010.
For the forgoing reasons, IT IS ORDERED:
(1) Defendant Guaranty Bank and Trust Co.'s Motion for Summary Judgment [#32] is GRANTED;
(2) The Clerk of the Court shall enter judgment in favor of Defendant Guaranty Bank and Trust Co. and against Plaintiff Marie D. Anderson; and
(3) Each Party shall bear her and its own costs and fees.
Alan C. Lammle, Parker, CO, pro se.
Kelly K. Robinson, Matthew M. Morrison, Sherman & Howard, L.L.C., Denver, CO, for Defendant.
MARCIA S. KRIEGER, Chief Judge.
Where a party fails to respond to a motion for summary judgment, the Court does not reflexively grant relief to the movant. Rather, it must examine the movant's submissions to determine whether the movant has met its burden of demonstrating that no material issues of fact remain for trial. Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir.2002); Fed.R.Civ.P. 56(e)(3). In doing so, however, the Court deems Mr. Lammle to have conceded the truth of any properly-supported facts alleged by the Defendant. Fed.R.Civ.P. 56(e)(2). With that standard in mind, the Court turns to the facts as asserted in the Defendant's motion.
In 2005, Mr. Lammle was hired by Ball Aerospace & Technologies Corporation (Ball), an information technology company, as a computer technician in the Information Management (IM) Department. In that position, Mr. Lammle served as the dedicated technician for engineers working at Ball. He was responsible for servicing and repairing their computers, troubleshooting software problems, and performing service calls to the engineers.
In June 2008, Mr. Lammle was hospitalized with pancreatitis. Due to his health problems, Mr. Lammle took a leave of absence from work until March 3, 2009. Upon returning to work, Mr. Lammle discovered that in his absence, the IM Department had been reorganized. Mr. Lammle was told that he would no longer be providing field support to the engineers. Instead, he was assigned to a service desk position. At the service desk, Mr. Lammle was responsible for providing remote computer service to all customers. Mr. Lammle continued to receive the same salary and benefits as he did before his leave of absence.
Shortly after returning to work, Mr. Lammle complained to his supervisors that he had been demoted. He also complained that he was not being provided with sufficient training for his new position. In an e-mail sent to the Human Resources manager, Toya Specman, Mr. Lammle stated that he thought he would eventually be laid off because of his age and his "perceived disability." About a week later, Mr. Lammle's wife and former attorney, Amy Jane Simmons, sent a letter to Ball's legal department, alleging that Mr. Lammle had been falsely accused of sleeping on the job and that the accusation was part of a scheme intended to bring about Mr. Lammle's termination. On March 27, 2009, Ms. Simmons sent another letter to Ball's legal department. Ms. Simmons alleged that Mr. Lammle was suffering "harassment" because his pay was not directly deposited into his bank account that afternoon.
On March 31, 2009, Mr. Lammle filed a Charge of Discrimination with the Equal Employment Opportunity Commission. In his Charge, Mr. Lammle alleged that he had been "discriminated against based on [his] age, 47, in violation of the [ADEA] and based on a perceived disability . . . in violation of the ADA." Specifically, he alleged that after his "demotion," he was "subjected to harassment and adverse terms and conditions of employment when [Ball] failed to give [him] appropriate training, and access to tools needed to perform the duties of [his] reassigned position." He further alleged that he was "issued a fabricated verbal warning [for sleeping on the job] under threat of termination on March 20, 2009."
In June 2009, Mr. Lammle was hospitalized again. After he was discharged, Mr. Lammle did not report back to work. Instead, he began a second leave of absence. When he returned to work on December 1, 2010, he was informed that his position had been filled.
Mr. Lammle received a right to sue letter from the EEOC in September 2011. He then commenced this action. As narrowed by earlier proceedings, Mr. Lammle has three remaining claims in this case: (1) disability discrimination under the Americans with Disabilities Act (ADA), (2) age discrimination under the Age Discrimination in Employment Act (ADEA), and (3) common law intentional infliction of emotional distress. Ball seeks summary judgment on each claim.
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir.1995). Summary adjudication is authorized when there is no genuine dispute as to any material fact and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Substantive law governs what facts are material and what issues must be determined. It also specifies the elements that must be proved for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir.1989). A factual dispute is "genuine" and summary judgment is precluded if the evidence presented in support of and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment motion, a court views all evidence in the light most favorable to the non-moving party, thereby favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.2002).
If the movant has the burden of proof on a claim or defense, the movant must establish every element of its claim or defense by sufficient, competent evidence. See Fed.R.Civ.P. 56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the responding party must present sufficient, competent, contradictory evidence to establish a genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir.1999). If there is a genuine dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material fact, no trial is required. The court then applies the law to the undisputed facts and enters judgment.
Mr. Lammle presents two theories of recovery for each of his statutory claims. First, he claims that he was subjected to disparate treatment because of his age and/or perceived disability when he was reassigned to a service desk position and was not provided training related to his new position.
Mr. Lammle claims that when he returned to work in March 2009, he was "demoted" to an office position and was denied training on certain software systems.
The ADA provides that "[n]o covered entity shall discrimination against a qualified individual on the basis of the disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To prevail on a disparate treatment or discrimination claim under the ADA, Mr. Lammle must show that Ball intentionally discriminated against him for a reason prohibited by the statute. Jaramillo, 427 F.3d at 1306. In so doing, Mr. Lammle must make out a prima facie case, showing that (1) he is a disabled person as defined by the Act; (2) he was qualified, with or without reasonable accommodation, to perform the essential functions of the job held or desired; and (3) his employer discriminated against him because of his disability. See Mackenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir.2005). To demonstrate "discrimination" under the third element, Mr. Lammle must show that he suffered an "adverse employment action because of the disability." EEOC v. C.R. England, Inc., 644 F.3d 1028, 1037-38 (10th Cir.2011). Similarly, to establish a prima facie case under the ADEA, Mr. Lammle must prove that (1) he is a member of the class protected by the ADEA; (2) he was qualified for the position at issue; (3) he suffered an adverse employment action; and (4) he was treated less favorable than others not in the protected class. Jones, 617 F.3d at 1279.
When, as here, there is no direct evidence of discrimination, the Court applies the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-02 (1973). The McDonnell Douglas framework applies to Mr. Lammle's discrimination claims under both the ADA and the ADEA. See Jaramillo v. Colo. Judicial Dep't, 427 F.3d 1303, 1306 (10th Cir.2005); Jones v. Oklahoma City Public Schools, 617 F.3d 1273, 1278 (10th Cir.2010). Under this framework, Mr. Lammle must first make out a prima facie case of discrimination, as described above. If he is successful, the burden shifts to Ball to articulate a legitimate, nondiscriminatory reason for its employment actions. If Ball proffers such a reason, the burden shifts back to Mr. Lammle to ultimately show that the stated reasons are merely "pretextual." McDonnell Douglas, 411 U.S. at 804-05.
An employee produces sufficient evidence of pretext when he shows "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons" for its actions that a reasonable fact finder could rationally find them unworthy of belief and therefore infer that the employer did not act for the asserted nondiscriminatory reasons. Jaramillo, 427 F.3d at 1308. The Court is mindful that when evaluating pretext, the pertinent question is not whether the employer's proffered reasons were right, wise, or fair, but whether the employer honestly believed those reasons and acted in good faith upon those beliefs. Stover v. Martinez, 382 F.3d 1064, 1076 (10th Cir.2004).
In support of their position, Ball proffered the affidavit of Toya Speckman, its Senior Human Resources Manager. Ms. Speckman testified that in 2008, budgetary constraints required that IM Department improve its efficiency and lay off several employees. The evidence shows that the reorganization of the IM Department resulted in greater use of outside contractors, thereby reducing the need for Ball's technicians to work in the field. Further, the IM Department began delegating a higher volume of service calls to the service desk, where computer technicians could resolve problems remotely. Ms. Speckman testified that to implement the necessary layoffs, the IM Department manager, John LaFalce, conferred with the Human Resources and together they compared each employee's skills and performance level to those possessed by other layoff candidates and Ball's operational requirements. Ms. Speckman testified that the review identified three candidates for layoff—Mr. Lammle was one of them. She testified that although Ball laid off the other two candidates, it did not lay off Mr. Lammle. Ball opted instead to reassess its needs when Mr. Lammle returned from his leave of absence. Ms. Speckman stated that the individuals who were laid off were 28 and 30 years old, and neither was disabled. The evidence shows that although Mr. Lammle previously provided dedicated support to Ball's engineers, after the reorganization, Ball employees no longer served in that capacity. Ms. Speckman testified that when Mr. Lammle returned to work in March 2009, no technician positions involving field work were available. She stated that because Ball needed a service desk position filled when Mr. Lammle returned, he was assigned to that position. Ms. Speckman testified that there were at least two other individuals who were formerly computer technicians who were assigned to the service desk during the reorganization. One of those individuals was 54 years old, and the other was 36 years old; neither of them was disabled.
Having reviewed the record, the Court finds that there is nothing to support an inference that Ball's proffered reasons for Mr. Lammle's reassignment and any denial of training are unworthy of belief. There is nothing implausible, inconsistent, or contradictory about Ball's reasons for its employment decisions. Rather, it appears that the decision-makers at Ball made choices that they determined were in the best interest of the company. Accordingly, the Court finds that nothing in the record that creates a genuine dispute of fact as to whether Ball's proffered reasons for changes in his employment were pretextual. Thus, Ball is entitled to summary judgment on Mr. Lammle's claims.
Mr. Lammle claims that, beginning in March 2009 when he returned to work, he was subjected to harassment. Ball moves for judgment in its favor on this claim, arguing that Mr. Lammle cannot prove that he was subjected to severe or pervasive harassment that altered the conditions of his employment, nor can he prove that the alleged harassment occurred because of his age or disability.
For a hostile environment claim to survive summary judgment, the plaintiff must show that a rational jury could find that the workplace was permeated with discriminatory intimidation, ridicule, and insult that were sufficiently severe or pervasive to alter the terms, conditions, or privileges of employment, and the harassment stemmed from age- or disability-related animus. See Mackenzie, 414 F.3d at 1280; Lanman v. Johnson Cnty., Kansas, 393 F.3d 1151, 1155 (10th Cir.2004). To evaluate whether a working environment is sufficiently hostile or abusive, the Court examines the totality of the circumstances, including the frequency of the conduct, the severity of the conduct, whether the conduct was physically threatening or humiliating or a mere offensive utterance, and whether the conduct unreasonably interfered with the employee's work performance. Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). Additionally, the environment must be both subjectively and objectively hostile. Id.
Applying these principles, the Court concludes that the record falls far short of showing age- or disability-related harassment. Several of Mr. Lammle claims of harassment relate to the employment decisions made by Ball, such as the reassignment and denial of training. These decisions cannot be considered "harassment" because they were not undertaken for the purpose of intimidation, ridicule, or insult. Mr. Lammle also alleges that (1) he was "falsely accused" of sleeping on the job, (2) a webcam allegedly was used to spy on him, (3) he was allegedly yelled at on two occasions by his manager, (3) he did not receive his direct deposit on time, and (4) someone allegedly stole a used syringe from his lunchbox. Mr. Lammle has not come forth with any evidence to establish the truth of each of these allegations. Assuming he could do so, and assuming that these incidents could be considered forms of harassment, there is simply nothing in the record to support an inference that what happened to Mr. Lammle was because of his age or a perceived disability. Accordingly, the Court finds that there is no genuine dispute of fact with regard to Mr. Lammle's hostile work environment claims under the ADA and ADEA, and Ball is entitled to judgment on these claims.
Under Colorado law, a plaintiff may recover for the tort of intentional infliction of emotional distress (otherwise known as "outrageous conduct") if the plaintiff proves that (1) the defendant engaged in extreme and outrageous conduct, (2) recklessly or with the intent of causing the plaintiff severe emotional distress, and (3) causing the plaintiff to suffer severe emotional distress. Han Ye Lee v. Colo. Times, Inc., 222 P.3d 957, 966-67 (Colo.App.2009). Ball argues that Mr. Lammle cannot prove any of these elements.
Before permitting a plaintiff to present a claim for outrageous conduct to a jury, however, the Court must rule on the threshold issue of whether the plaintiff has alleged conduct that is outrageous as a matter of law. Coors Brewing Co. v. Floyd, 978 P.2d 663 (Co-lo.1999). A claim for outrageous conduct contemplates only acts that are "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Destefano v. Grabrian, 762 P.2d 275, 286 (Colo.1988).
Here, it appears Mr. Lammle alleges that Ball engaged in outrageous conduct when it took certain employment actions against him, and when it failed to prevent the "discrimination" from occurring. To the extent Mr. Lammle relies on the same conduct that formed the basis of his statutory claims, that conduct cannot be used as the basis of his claim for intentional infliction of emotional distress. See Emerson c. Wembley USA Inc., 433 F.Supp.2d 1200, 1228 (D.Colo.2006); see also Katz v. City of Aurora, 85 F.Supp.2d 1012, 1021 (D.Colo.2000) (noting under Colorado law, where the allegations forming the basis of a claim for outrageous conduct are the same as those forming the basis for a claim of discrimination, and nothing more, they fail to state an independently cognizable claim). Disregarding Mr. Lammle's allegations that form the basis of his statutory claims, his only allegations as to his outrageous conduct claim are that Ball failed to "assist and/or attempt to rectify the discrimination." As to those allegations, the Court finds that they are not sufficiently outrageous to support a claim for outrageous conduct. Indeed, as noted above, Mr. Lammle has failed to establish that he was subjected to discrimination. Accordingly, the Court finds that Ball is entitled to judgment on this claim.
For the forgoing reasons, the Defendant's Motion for Summary Judgment (
Julia Morgan, Lakewood, CO, pro se.
Danielle T. Felder, Tanya Eileen Milligan, Messner & Reeves LLC, Denver, CO, for Defendant.
Wiley Y. Daniel, Senior U.S. District Judge
Magistrate Judge Shaffer advised the parties that objections to the Recommendation [ECF No. 20] must be filed within 14 days after service of a copy of the Recommendation [ECF No. 20]. ECF No. 20, p.18. As of Friday, December 20, 2013, no party has filed objections. Because the parties did not file objections to Magistrate Judge Shaffer's Recommendation [ECF No. 20], I am vested with discretion to review it "under any standard [I] deem [] appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). Nonetheless, though not required to do so, I review the Recommendation to "satisfy [my]self that there is no clear error on the face of the record."
Having reviewed the Recommendation [ECF No. 20], I am satisfied that there is no clear error on the face of the record. I find that Magistrate Judge Shaffer's Recommendation [ECF No. 20] is thorough, well-reasoned, and sound. Further, I agree that Goodwill's Motion For Summary Judgment Dismissing All Of Plaintiff's Claims [ECF No. 14] should be granted and that Goodwill is entitled to summary judgment on Morgan's claims.
After careful consideration of the matters before this Court, it is
ORDERED that Magistrate Judge Shaffer's Recommendation [ECF No. 20] is
FURTHER ORDERED that Goodwill's Motion For Summary Judgment Dismissing All Of Plaintiffs Claims [ECF No. 14] is
Magistrate Judge Craig B. Shaffer
This civil action comes before the court on "Defendant's Motion for Summary Judgment Dismissing All of Plaintiff's Claims." Pursuant to the Amended Order of Reference dated February 3, 2012 (Doc. # 4) and the memorandum dated May 1, 2013 (Doc. # 15), this matter was referred to the Magistrate Judge. The court has reviewed the Motion, the Declarations and exhibits, Defendant's Reply (filed June 7, 2013) (Doc. # 18), the pleadings, the entire case file, and the applicable law and is sufficiently advised in the premises.
Defendant moves pursuant to Fed.R.Civ.P. 56 for summary judgment on all of the claims in the Complaint. "Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the court may grant summary judgment where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the . . . moving party is entitled to judgment as a matter of law." Montgomery v. Board of County Commissioners of Douglas County, Colorado, 637 F.Supp.2d 934, 939 (D.Colo.2009) (internal quotation marks and citations omitted).
The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is entitled to a judgment as a matter of law because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Id. (internal quotation marks and citations omitted).
Ms. Morgan has not filed a response to Goodwill's Motion. On May 1, 2013, the court directed Ms. Morgan to file any response she had to the Motion on or before May 31, 2013. (See Order (Doc. # 16)). The court's records do not reflect that Ms. Morgan's copy of the court's Order was returned in the mail as undeliverable. Ms. Morgan neither sought an extension of time to respond nor filed a response. The Federal Rules of Civil Procedure specifically contemplate the consequences of Ms. Morgan's failure to oppose the summary judgment motion:
Fed.R.Civ.P. 56(e). "If the nonmoving party fails to respond, the district court may not grant the motion without first examining the moving party's submission to determine if it has met its initial burden of demonstrating that no material issues of fact remain for trial and the moving party is entitled to judgment as a matter of law." Murray v. City of Tahlequah, Oklahoma, 312 F.3d 1196, 1200 (10th Cir.2002). See also Armstrong v. Swanson, 2009 WL 1938793 at * 7 (D.Colo. July 2, 2009) ("When a party with the burden of proof fails to respond to a motion for summary judgment, the motion is not reflexively granted; rather, the Court simply deems the non-movant to have waived the opportunity to assert any additional facts and examines whether the facts asserted by the movant warrant a trial or permit entry of judgment as a matter of law.") (citation omitted); Barton v. City and County of Denver, 432 F.Supp.2d 1178, 1188 (D.Colo.2006) (although plaintiff's failure to make a substantive response constituted a confession of facts asserted by defendants, it remained incumbent upon the court to make the specific determinations required under Rule 56(c)).
At all times relevant to the Complaint, Ms. Morgan was employed by Goodwill in Colorado. (See Doc. # 1 at ¶ 5). On October 11, 2008, Goodwill hired Ms. Morgan as a Cashier at the S. Wadsworth Store. (See Declaration of Lynn Louvar, Exhibit A to Defendant's Motion (Doc. # 14-6) at ¶ 8; Personnel Action Request, Exhibit C to Defendant's Motion (Doc. # 14-8)). Ms. Morgan is still employed by Goodwill. (See Doc. # 14-6 at ¶ 14; Deposition of Julia Morgan, Exhibit F to Defendant's Motion (Doc. # 14-11) at 24 of 25; Answer to Request for Admission No. 1 (Doc. # 14-28 at 18 of 25). When she was hired, Ms. Morgan signed Goodwill's Americans with Disability Act Employee Statement and an Acknowledgment Receipt of the Employee Handbook. (See Doc. # 14-6 at ¶ 10; Exhibits D, E to Defendant's Motion (Docs.# 14-9, # 14-10). Ms. Morgan applied for and Goodwill promoted her to Lead Cashier on November 22, 2008. (See Application for Employment, Exhibit T to Defendant's Motion (Doc. # 14-29); Personnel Action Request, Exhibit V to Defendant's Motion (Doc. # 14-31); Doc. # 14-6 at ¶ 12).
On April 8, 2010, Ms. Morgan tripped on her own feet while walking through the store and injured her right knee. (See HealthONE Occupational Medicine Centers Initial Evaluation, Exhibit H to Defendant's Motion (Doc. # 14-15); Workers' Compensation—First Report of Injury, Exhibit H to Defendant's Motion (Doc. # 14-16); Declaration of Nora Rimando, Exhibit I to Defendant's Motion (Doc. # 14-17) at ¶ 5; Declaration of Ed Serpas, Exhibit Q to Defendant's Motion (Doc. # 14-25) at ¶ 9). Ms. Morgan entered the Workers' Compensation Return-To-Work Program and returned to work on April 10, 2010, two days after her injury. (See Employee Time Sheet Report, Exhibit J to Defendant's Motion (Doc. # 14-18) at 16 of 25; Exhibit K to Defendant's Motion (Doc. 14-19); Doc. # 14-6 at ¶ 11; Doc. # 14-17 at ¶ 6; Doc. # 14-25 at ¶ 10). Ms. Morgan worked under a Temporary Modified Duty Assignment Agreement that began on April 9, 2010. (See Exhibit L to Defendant's Motion (Doc. # 14-20); Doc. # 14-17 at ¶ 10).
Ms. Morgan underwent anterior cruciate ligament ("ACL") surgery for her right knee on June 10, 2010. (See HealthONE Occupational Medicine Centers Interim Summary, Exhibit M to Defendant's Motion (Doc. # 14-21); Doc. # 14-17 at ¶ 7; Doc. # 14-25 at ¶ 11). Goodwill paid for the surgery. (See Doc. # 14-17 at ¶ 9). Ms. Morgan was on leave from work for two weeks, from June 10 until June 25, 2010. (See Physician's Report of Worker's Compensation Injury dated June 18, 2010, Exhibit N to Defendant's Motion (Doc. # 14-22); Physician's Report of Worker's Compensation Injury dated June 25, 2010, Exhibit O to Defendant's Motion (Doc. # 14-23); Doc. # 14-17 at ¶ 8). Ms. Morgan returned to work on June 26, 2010 and worked under a Temporary Modified Duty Assignment Agreement that commenced on June 28, 2010. (See Temporary Modified Duty Assignment Agreement, Exhibit P to Defendants Motion (Doc. # 14-24); Doc. # 14-17 at ¶ 11; Doc. # 14-25 at ¶ 12).
In her First Claim for Relief, Ms. Morgan alleges that Goodwill did not make reasonable accommodation for her disabilities, which included her knee injury and an unidentified "cognitive disability." (See Doc. # 1 at 3 of 10). The ADA prohibits covered employers from discriminating against "a qualified individual on the basis of disability." 42 U.S.C. § 12112(a). Discrimination claims brought under the ADA follow the familiar burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Carter v. Pathfinder Energy Services, Inc., 662 F.3d 1134, 1141 (10th Cir.2011) (citation omitted). "To state a prima facie case for discrimination under the ADA, [Ms. Morgan] must establish that (1) she is disabled, (2) she was qualified, with or without reasonable accommodation, to perform the essential functions of her job, and (3) her employer discriminated against her because of her disability." Robert v. Board of County Comm'rs, 691 F.3d 1211, 1216 (10th Cir.2012). Ms. Morgan bears the burden of raising a genuine issue of material fact on each element of her prima facie case. Doyal v. Oklahoma Heart, Inc., 213 F.3d 492, 495 (10th Cir.2000).
Goodwill argues that Ms. Morgan cannot prove any of the three elements of a prima facie case. Regarding the first element of a prima facie case, Goodwill argues that Ms. Morgan was not disabled. The ADA defines a disability as "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3))." 42 U.S.C. § 12102(1)). Ms. Morgan alleges that she was disabled and/or regarded as disabled under subsections (A) and (C).
A court is required to undertake a three-step analysis under subsection (A). Doyal, 213 F.3d at 495. "First, the court must determine whether the plaintiff has an impairment." Id. Second, the court must identify the life activity upon which the plaintiff relies and determine whether it constitutes a major life activity under the ADA." Id. "Third, the court asks whether the impairment substantially limited the major life activity." Id. See also Doebele v. Sprint/UnitedMgmt. Co., 342 F.3d 1117, 1129 (10th Cir.2003) ("First, the plaintiff must have a recognized impairment; second, the plaintiff must identify one or more appropriate major life activities; and third, the plaintiff must show that the impairment substantially limits one or more of those activities.").
"Merely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002). A "major life activity" is not statutorily defined, but both the Equal Employment Opportunity Commission ("EEOC") and the courts have defined the term as including "caring for oneself, performing manual tasks, walking, seeing, breathing, learning, and working." Nielsen v. Moroni Feed Co., 162 F.3d 604, 610 n. 11 (10th Cir.1998) (citing 29 C.F.R. § 1630.2(i)). See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1165 n. 5 (10th Cir.1999) (en banc) (EEOC's interpretative guidance of ADA regulations given controlling weight) (citations omitted). Whether a plaintiff has an impairment under the ADA and whether the identified activity is a major life activity are questions of law for the court. Doebele, 342 F.3d at 1129. Although the question of whether an impairment is substantially limiting is ordinarily a factual question for a jury, it may be evaluated by the court on a motion for summary judgment. Id. at 1130 n.5; Bristol v. Bd. of County Comm'rs, 281 F.3d 1148, 1161 n. 5 (10th Cir.2002), vacated in part on other grounds, 312 F.3d 1213 (10th Cir.2002) (en banc).
More specifically, "[t]emporary disability while recuperating from surgery is generally not considered a disability under the ADA." Peoples v. Langley/Empire Candle Co., 2012 WL 171340, *2 (D.Kan. Jan. 20, 2012) (finding hernia repair surgery is not a disability under the ADA) (citing 42 U.S.C. § 12102(2), (3)(B). See also Blackburn v. Trs. of Guilford Tech. Comty. Coll., 733 F.Supp.2d 659, 663 n. 3 (M.D.N.C.2010) ("Ordinarily, a temporary impairment due to an injury or illness, including recuperation from surgery, is not sufficient to qualify as a disability under the ADA."); Rebarchek v. Farmers Co-op. Elevator & Mercantile Ass'n, 60 F.Supp.2d 1145, 1151-52 (D.Kan.1999) (holding that employee's back injury was not an ADA "disability"; although back injury required surgery and employee was given certain restrictions while recovering from surgery, there was no evidence that his restrictions were expected to be permanent or that his condition was expected to result in a permanent or long-term impairment of his ability to engage in major life activities)); Zurenda v. Cardiology Associates, P.C., 2012 WL 1801740, *8 (N.D.N.Y. May 16, 2012) (finding that plaintiff's temporary disability due to knee surgery does not trigger protections under the ADA).
Even more specifically, courts have found that ACL injuries do not render a person disabled under the ADA. See Clark v. Western Tidewater Regional Jail Authority, 2012 WL 253108, *7 (E.D.Va. Jan. 26, 2012) (finding that plaintiff's ACL injury did not render her disabled under the ADA); Koller v. Riley Riper Hollin & Colagreco, 850 F.Supp.2d 502, 513 (E.D.Pa.2012) (finding allegations of impairment after surgery for a torn ACL did not rise to the level necessary to infer any disability under the ADA, as modified by the ADA Amendment Act of 2008 ("ADAAA")).
Here, the evidence shows that Ms. Morgan's impairment was of limited duration and had no permanent or long term impact. Ms. Morgan had temporary work restrictions for five months related to her ACL injury. (See Doc. # 14-17 at ¶¶ 5-11, 15-16, Doc. # 14-19, Doc. # 14-20, Doc. # 14-21, Doc. # 14-22, Doc. # 14-23, Doc. # 14-24 at 1-7, 9-16, 19 of 19, Doc. # 14-25 at ¶¶ 9-12, 15-16, Doc. # 14-26). Goodwill fully complied with her temporary work restrictions. (See Doc. # 14-13 at 3-5 of 25). Ms. Morgan reached maximum medical improvement and on November 15, 2010, she returned to regular duty as a Lead Cashier with no work restrictions. (See Doc. # 14-12 at 24-25 of 25, Doc. # 14-26).
Ms. Morgan also alleges in her First Claim for Relief that she has a "cognitive disability." While she alleges that her "cognitive disability" is an impairment under the ADA, Ms. Morgan merely generally alleges cognitive impairments without producing probative evidence. Ms. Morgan believes her "cognitive disability" is a "traumatic brain injury." (See Doc. # 14-11 at 6-7, 77-91). She has never consulted a medical professional, had a CT Scan or other brain scan, or received a diagnosis regarding any "cognitive disability" "traumatic brain injury." (See Doc. # 14-11 at 2, 23-25 of 25). Ms. Morgan alleges that she informed Goodwill employees in March 2010 that she had a "cognitive disability." (See Doc. # 14-11 at 25 of 25, Doc. # 14-12 at 12-14 of 25; Doc. # 14-13 at 14-16 of 25). While she initialed Goodwill's policy regarding submission of a "Request for Reasonable Accommodation" form, Ms. Morgan never submitted a Request for Reasonable Accommodation form or otherwise requested accommodation for any alleged disability. (See Doc. # 14-6 at ¶¶ 10, 23-24; Doc. # 14-12 at 14-15, 17-18, 24 of 25, Doc. # 14-17 at ¶¶ 18, 20, Doc. # 14-29, Doc. # 14-30, Doc. # 14-31, Doc. # 14-37, Doc. # 14-44). Ms. Morgan represented that she could perform the functions of the jobs she performed for Goodwill and she in fact performed those job functions. (See Doc. # 14-9, Doc. # 14-11 at 21 of 25, Doc. # 14-12 at 7-8, 18-19 of 25, Doc. # 14-14 at 7 of 17, Doc. # 14-17 at ¶ 15-16).
There is insufficient evidence in the record to show Ms. Morgan suffers from the "cognitive disability" she alleges. The record contains nothing more than Ms. Morgan's conclusory allegations of her personal belief and her statements to other employees that she has a "cognitive disability." These allegations are insufficient to create a record of disability sufficient to overcome summary judgment, especially when considered together with Ms. Morgan's failure to indicate on Goodwill's forms that she had a disability, the lack of any medical diagnosis or documentation that she suffered from such a condition, her medical release from any work restrictions, her representations when applying for her positions at Goodwill that she could perform the functions of those jobs, and her actual performance of those job functions. See, e.g., Brettler v. Purdue University, 408 F.Supp.2d 640, 663-64 (N.D.Ind.2006) (granting employer's motion for summary judgment where plaintiff failed to provide any medical records or affidavits establishing any impairment other than the plaintiff's self-serving affidavit that he has a "narcoleptic condition," and "intellectual disability"). Ms. Morgan's alleged "cognitive disability" does not constitute a mental impairment that establishes a prima facie case under the ADA.
As the evidence fails to show that Ms. Morgan was disabled, she fails to establish the first element of a prima facie case and no genuine dispute of material fact exists as to whether Goodwill discriminated against her on the basis of a disability.
For purposes of paragraph (1)(C):
42 U.S.C. § 12102(3). In the Tenth Circuit, "[a] person is regarded as disabled when (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities." Johnson v. Weld County, Colo., 594 F.3d 1202, 1219 (10th Cir.2010) (internal quotation marks and citation omitted). "In both cases, it is necessary that [the employer] entertain misperceptions about the individual-it must believe either that [the individual] has a substantially limiting impairment that [the individual] does not have or that [the individual] has a substantially limiting impairment when, in fact, the impairment is not so limiting." Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999), superseded by statute on other grounds, ADA Amendments Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008). See also Dillon v. Mountain Coal Co., L.L.C., 569 F.3d 1215, 1218 (10th Cir.2009) ("a plaintiff must show that an employer has mistaken beliefs about the plaintiff's abilities. . . .") (internal quotation marks and citations omitted). The court's "focus is on an employer's subjective state of mind: did the employer mistakenly believe that the plaintiff was substantially limited in performing a major life activity?" Justice v. Crown Cork and Seal Co., Inc., 527 F.3d 1080, 1086 (10th Cir.2008) (citation omitted).
First, Ms. Morgan's claim fails to the extent she alleges that Goodwill regarded her as disabled based on her ACL injury. She could not be regarded as disabled for an injury that was transitory and minor. See 42 U.S.C. § 12102(3)(B). Ms. Morgan does not dispute that her injury and recovery had a limited duration. The evidence shows that Goodwill viewed Ms. Morgan's injury as temporary. See Delgado v. Tom Kelly & Assocs., Inc., No. 06-CV-0004-CVE-PJC, 2006 WL 3762093, at * 10 (N.D.Okla. Dec. 20, 2006) (plaintiff's employer did not regard the plaintiff as disabled because the evidence showed that the employer viewed any impairment as temporary). Ms. Morgan states that participation in Goodwill's Return-To-Work Program and Temporary Modified Duty Assignment Agreements demonstrate that Goodwill regarded her as disabled. (See Doc. # 14-13 at 11, 13 of 25). The Return-to-Work Program utilizes temporary work restrictions for work-related injuries and is not for employees with disabilities. (See Doc. # 14-17 at ¶ 4, Workers' Compensation Return-To-Work Program Memorandum, Exhibit K to Defendant's Motion (Doc. # 14-19)). Goodwill acknowledged Ms. Morgan's temporary work restrictions and treated her accordingly. An employer's knowledge of a medical condition and a request for leave does not establish that an employer perceived an employee as disabled. Berry v. T-Mobile USA, Inc., 490 F.3d 1211, 1219-20 (10th Cir.2007). The record contains no evidence that Goodwill misperceived the extent of Ms. Morgan's limitation. Goodwill's perception of her limitation was not based on speculation, stereotype or myth, but on a doctor's written evaluations of her condition. See Wooten, 58 F.3d at 386. Ms. Morgan does not identify an impairment that substantially limited any major life activities or present evidence that Goodwill treated or regarded her as having an impairment that substantially limited any major life activities. See Hilburn v. Murata Electronics North America, Inc., 181 F.3d at 1220, 1230 (11th Cir.1999) ("a perceived impairment must be believed to substantially limit a major life activity of the individual"); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 192 (3d Cir.1999) ("Liability attaches only to a mistake that causes the employer to perceive the employee as disabled within the meaning of ADA, i.e., a mistake that leads the employer to think that the employee is substantially limited in a major life activity."). Her work restrictions were steadily reduced during the months after her surgery. (See, e.g., Doc. # 14-13 at 12 of 25). She reached maximum medical improvement within seven months of her initial injury and returned to regular duty as a Lead Cashier with no work restrictions. Ms. Morgan fails to present sufficient evidence that Goodwill regarded her as being substantially limited in any major life activity based on her ACL surgery.
In her Fourth Claim for Relief, Ms. Morgan alleges that in, violation of "Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5," she "was subjected to adverse employment conditions and disparate treatment for her efforts to oppose race and national origin bias that allowed preferential treatment to Hispanic/Latino looking persons and Hispanic/Latino individuals not afforded to similarly situated non Hispanic employees." (See Doc. # 1 at 5 of 10; see also Charge of Discrimination (Doc. # 14-44) at 1 of 2 ("I believe I have been discriminated against because of my race/national origin (White, European/non—Hispanic). . . ."). Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; . . ." 42 U.S.C. § 2000e-2(a)(1). "Title VII was enacted to ensure equality of employment opportunities and to eliminate those practices and devices that have historically discriminated on the basis of race, sex, color, religion, or national origin." Livingston v. Roadway Exp., Inc., 802 F.2d 1250, 1251 (10th Cir.1986) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Title VII prohibits discrimination against groups that historically have not been socially disfavored, as well as groups that historically have been socially disfavored. Livingston, 802 F.2d at 1252 (citing McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 278-80 (1976)). "However, the presumptions in Title VII analysis that are valid when the plaintiff belongs to a disfavored group are not necessarily justified when the plaintiff is a member of an historically favored group." Livingston, 802 F.2d at 1252. Ms. Morgan's allegation that she was subjected to disparate treatment because she is "White, European/non-Hispanic" is subject to a reverse discrimination analysis. Lyons v. Red Roof Inns, Inc., No. 04-1360, 130 F. App'x 957, 963 (10th Cir. May 12, 2005).
In order for a reverse discrimination claim to survive a summary judgment motion, the movant must first establish a prima facie case. Notari v. Denver Water Dept., 971 F.2d 585, 588 (10th Cir.1992) (citing McDonnell Douglas, 411 U.S. at 792). If the plaintiff carries this initial burden, the burden then shifts to the defendant to show a legitimate nondiscriminatory reason for the challenged employment decision. Notari, 971 F.2d at 588. If the defendant meets this burden, the burden then shifts back to the plaintiff to prove that the legitimate reasons were really a pretext for discrimination. Notari, 971 F.2d at 588.
In a reverse discrimination case, the prima facie case is adjusted to reflect the reverse discrimination context of the lawsuit. Reynolds v. School Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1534 (10th Cir. 1995). See also Livingston, 802 F.2d at 1252 ("When a plaintiff who is a member of a favored group alleges disparate treatment, the courts have adjusted the prima facie case to reflect this specific context. . . ."). This adjustment requires the plaintiff to show either: background circumstances which demonstrate that the defendant is that unusual employer who discriminates against the majority or, alternatively, that but for the plaintiff's status the challenged employment decision would not have occurred. See Adamson v. Multi-Cmty. DiversifiedServs., Inc., 514 F.3d 1136, 1149 (10th Cir.2008) ("When plaintiff is a member of a historically favored group, by contrast, an inference of invidious intent is warranted only when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.") (citation omitted); McGarry v. Board of County Com'rs of the County of Pitkin, 175 F.3d 1193, 1199 (10th Cir.1999) ("In addition, a plaintiff may recover if the plaintiff can demonstrate he or she is the victim of reverse discrimination by direct evidence of discrimination, or indirect evidence sufficient to support a reasonable probability, that but for the plaintiff's status the challenged employment decision would have favored the plaintiff."). "The plaintiff may proceed by relying on a version of the McDonnell Douglas Corp. v. Green burden-shifting analysis to test whether a person who is a member of a historically favored group is entitled to the McDonnell Douglas presumption of discrimination." McGarry, 175 F.3d at 1199 (citations omitted). The alternative approach "does not displace the McDonnell Douglas paradigm but simply provides an alternative basis upon which plaintiffs may satisfy their prima facie burden." Notari, 971 F.2d at 591. "[I]t is not enough, under this alternative formulation, for a plaintiff merely to allege that he was qualified and that someone with different characteristics was the beneficiary of the challenged employment decision. Instead, the plaintiff must allege and produce evidence to support a reasonable inference that but for plaintiff's status the challenged decision would not have occurred." Notari, 971 F.2d at 590.
Approximately ten Caucasian employees and six Hispanic employees worked with Ms. Morgan at the South Wadsworth Store in 2010. (See Doc. # 14-6 at ¶ 25). Ms. Morgan's direct supervisor, Mr. Serpas, is Caucasian. (See Doc. # 14-25 at ¶ 3). She generally alleges that Goodwill did not take disciplinary action against Hispanic employees who engaged in behavior similar to hers. (See Doc. # 14-14 at 10-12 of 17). However, Ms. Morgan acknowledges that not all Hispanic and Caucasian employees were treated differently. (See Doc. # 14-14 at 11 of 17, see also Doc. # 14-25 at ¶ 39). The evidence indicates that Ms. Morgan was promoted to Lead Cashier on a timetable similar to other employees, both Hispanic and Caucasian. (See Doc. # 14-12 at 1-4 of 25). Ms. Morgan's work schedule was not significantly different than other employees' schedules. (See Doc. # 14-12 at 6-7 of 25, Weekly Employee Schedule, Exhibit X to Defendant's Motion (Doc. # 14-33), Doc. # 14-25 at ¶ 17). As all of the Cashiers and Lead Cashiers preferred to work the day shifts, Mr. Serpas rotated employees' shifts so that everyone had an opportunity to work day shifts. (See Doc. # 14-25 at ¶ 17). While Ms. Morgan and Ms. Burquez were both working as Lead Cashiers, from approximately April 2010 until October 2010, Ms. Burquez was scheduled for more of the undesirable closing shifts than Morgan. (See Doc. # 14-33). The responsibilities that Ms. Morgan complained about as inequitable, such as rearranging merchandise, rearranging display racks, were part of the essential job responsibilities of a Lead Cashier. (See Job Description, Exhibit W to Defendant's Motion, Doc. # 14-32). Ms. Burquez was terminated from her employment at Goodwill on February 5, 2011 for failing to report for her scheduled shifts. (See Doc. # 14-13 at 8-9 of 25, Doc. # 14-25 at ¶ 37, Personnel Action Request Form, Exhibit GG to Defendant's Motion (Doc. # 14-45)). While Ms. Morgan believes that other employees' attendance was not monitored in the same manner that her attendance was monitored, she does not provide specific evidence of dates or hours. (See Doc. # 14-13 at 20 of 25). She states only generally that two other employees received better training than she did, without providing any facts in support. (See Doc. # 14-14 at 4 of 17). In sum, Ms. Morgan fails to satisfy the first prong of a prima facie case because she does not establish background circumstances that "support the suspicion that the defendant is that unusual employer who discriminates against the majority," Adamson, 514 F.3d at 1149, or that any similarly-situated non-Caucasians were treated more favorably.
In the Second, Third, and Fifth Claims for Relief, Ms. Morgan alleges that she was demoted and "subjected to adverse employment conditions and disparate treatment" for filing "a formal complaint with the Denver Equal Employment Opportunity Commission on November 23, 2010," for opposing "discrimination about her disability, for utilizing Defendant's internal notification system and for contacting government regulation agencies," and "for her efforts to oppose Defendant's payroll practices which denied worker's wage compensation for time worked in violation of FLSA and Defendant's written policy. . . ." (See Doc. # 1 at 4-5 of 10).
Ms. Morgan alleges that on October 7, 2010, she told Wendy Runquist, the Assistant Store Manager, that she would be filing a complaint with the EEOC. (See Doc. # 14-14 at 5 of 17). On October 9, 2010, Mr. Serpas demoted Ms. Morgan from a Lead Cashier to a Cashier because she was not willing to work until 9:30 p.m. to close the store. (See Personnel Action Request Form, Exhibit Y to Defendant's Motion (Doc. # 14-37); Doc. # 14-25 at ¶ 21). After her demotion, Ms. Morgan filed an EEOC Charge of Discrimination on November 23, 2010. (See U.S. Equal Employment Opportunity Commission Intake Questionnaire, Exhibit EE to Defendant's Motion (Doc. # 14-43), EEOC Charge of Discrimination, Exhibit FF to Defendant's Motion (Doc. # 14-44)). Mr. Serpas received Ms. Morgan's Charge of Discrimination on or about November 23, 2010. (See Doc. # 14-25 at ¶ 32, Doc. # 14-44). Ms. Louvar received Ms. Morgan's Charge of Discrimination on or about December 1, 2010. (See Doc. # 14-6 at ¶ 16). The EEOC investigated and found no probable cause. (See Doc. # 14-6 at ¶ 15). Ms. Morgan told no one other than Ms. Runquist of her intention to file an EEOC complaint. (See Doc. # 14-14 at 5 of 17). Ms. Runquist was not a decision-maker in Ms. Morgan's demotion. (See id.; Doc. # 14-25 at ¶ 22). The decision-maker, Mr. Serpas, did not know that she intended to file a complaint with the EEOC. (See Doc. # 14-25 at ¶ 32). Ms. Morgan has not presented any evidence that Mr. Serpas and Ms. Louvar, the individuals who demoted her, were aware of any protected activity prior to October 9, 2010, the date she was demoted.
Ms. Morgan also filed a complaint with the Colorado Department of Labor and Employment ("CDLE") regarding "time shaving and wage theft." (See Doc. # 14-14 at 10 of 17). The CDLE conducted an audit of the S. Wadsworth Store on April 7, 2011 and made no adverse findings. (See Doc. # 14-6 at ¶¶ 18-19; Doc. # 14-14 at 10 of 17). Ms. Louvar did not know the audit was the result of a complaint filed by Ms. Morgan until Ms. Morgan filed her complaint in February 2012. (See Doc. # 14-6 at ¶ 18). Mr. Serpas never knew that Ms. Morgan made a complaint to the CDLE until this lawsuit commenced. (See Doc. # 14-25 at ¶ 33). In sum, Ms. Morgan cannot make out a prima facie case for her retaliation claims because she has not demonstrated a causal connection between the protected activity and a materially adverse action.
Ms. Morgan fails to meet her burden on summary judgment to establish a prima facie case as to any of her claims
Motion for Summary Judgment Dismissing All of Plaintiff's Claims" (filed April 30, 2013) (Doc. # 14) be GRANTED and summary judgment enter on the Complaint in favor of Defendant and against Plaintiff.
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 Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 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) (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"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir.1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir.1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir.2005) (firm waiver rule does not apply when the interests of justice require review).
DATED at Denver, Colorado, this 19th day of July, 2013.
