Daniel D. Domenico, United States District Judge.
Plaintiff, who has a history of documented mental health conditions, worked as a therapist for Defendant, which operates residential child care facilities that provide therapy to at-risk teens. Defendant terminated Plaintiff after she experienced suicidal ideations at work, and checked herself into a hospital. Plaintiff alleges, among other harms, that Defendant interfered with her entitlement to medical leave in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq., and discriminated against and failed to accommodate her in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Defendants have moved for summary judgment on all claims, and the matter is fully briefed. (Docs. 67, 79, 84.) For the following reasons, the Court
Defendant Third Way Center, Inc. (Third Way) operates licensed residential
Plaintiff Erin Melville has a long history of suicidal ideation and severe mental illness, including major depressive disorder recurrent episode (chronic), personality disorder, disorganized thinking, auditory hallucinations, and dissociative identity disorder, which includes the following multiple personalities: (1) Erin (herself); (2) Florence; (3) Caroline; (4) Emma; and (5) Snow. She has attempted suicide at least three times, including one gun-related attempt in February 2015.
Without disclosing any of her conditions or suicide attempts in her professional license or job applications, Ms. Melville became a provisional licensed professional counselor in Colorado,
In September 2016, Ms. Melville told a supervisor, Brittany Martinez, about one of her prior suicide attempts and some details of her mental health history. At the supervisor's suggestion, she shared some of that information with other coworkers at a staff meeting a few weeks later. Defendant Elizabeth Maple, Ms. Melville's immediate supervisor, later discussed these mental health issues with her and the impact they could have on her work with clients at Third Way. Ms. Maple also discussed them with another doctor. At that time, Third Way did not take any disciplinary or other action because Ms. Melville was meeting her job requirements and it did not then have any reason to believe she would be unable to in the future. On January 30, 2017, Third Way promoted Ms. Melville to therapist.
During the summer of 2017, Ms. Melville told Ms. Maple that she was experiencing an increase in symptoms, including anxiety, and was seeking treatment. On August 23, 2017, Ms. Melville experienced suicidal ideations at work. She told her co-workers that she was feeling unsafe and had decided to end her life that night. She then she voluntarily presented at the Parker Adventist Hospital emergency department and was not released until the following morning.
On September 8, Ms. Melville contacted Third Way seeking to immediately return to work. On September 11, she met with Ms. Maple and Defendant Renee Johnson, another of her supervisors, at a coffee shop. She told them she had ceased treatments, and that she would have to deal with periodic suicidal ideations for the rest of her life. Ms. Melville expressed financial anxiety due to being on unpaid FMLA leave, and Ms. Johnson stated that she could find another job—such as working as a waitress—or quit and apply for unemployment benefits and Third Way would not contest her application. Ms. Maple and Ms. Johnson advised her that she wouldn't be able to come back to work until she received clearance from Dr. Carlson and her mental health providers. Despite making repeated requests for a return-to-work letter from several providers, every provider refused her request, and Ms. Melville never received clearance to return to work or otherwise showed that she was psychologically unimpaired.
Based on Ms. Johnson's suggestions concerning unemployment benefits, Ms. Melville believed she had been fired. And in fact, Third Way paperwork dated September 14 reflects "involuntary" "termination" for being "unable to effectively work with [Third Way] kids at this time." On September 15, Third Way's executive director left her a message encouraging her to finish her FMLA leave and complete treatment until Dr. Carlson was satisfied she could return to Third Way. Ms. Melville did not call back and, on September 17, she applied for unemployment benefits through the Colorado Department of Labor.
On May 31, 2018, Ms. Melville entered into an agreement with the Board, in which she agreed not to practice as a counselor during the pendency of the Board's investigations into her mental health and alleged
On April 13, 2018, Ms. Melville sued Defendants in the Colorado District Court for Denver County. She asserted claims under the FMLA, the ADA, and several
The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is appropriate if there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A fact is material if it could affect the outcome of the suit under governing law; a dispute of fact is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. If a reasonable juror could not return a verdict for the nonmoving party, summary judgment is proper and there is no need for a trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
On a motion for summary judgment, the moving party bears the burden of demonstrating no genuine issue of material fact exists. Adamson, 514 F.3d at 1145. Where, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy this burden by demonstrating a lack of evidence for an essential element of the non-movant's claim. Id. That is, if a defendant shows entitlement to summary judgment, it becomes a plaintiff's "burden as the non-movant to set forth specific facts demonstrating that there was a genuine issue for trial as to those material matters for which she carried the burden of proof." Reynolds v. Sch. Dist. No. 1, Denver, Colo., 69 F.3d 1523, 1531 (10th Cir. 1995).
In deciding whether the moving party has carried its burden, courts do not weigh the evidence and instead must view it and draw all reasonable inferences from it in the light most favorable to the non-moving party. Adamson, 514 F.3d at 1145. But neither unsupported conclusory allegations nor mere scintillas of evidence are sufficient to create a genuine dispute of material fact on summary judgment. Maxey v. Rest. Concepts II, LLC, 654 F.Supp.2d 1284, 1291 (D. Colo. 2009). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact, a court may ... consider the fact undisputed for the purposes of the motion." Fed. R. Civ. P. 56(e)(2).
Ms. Melville asserts that Third Way unlawfully interfered with her right to medical leave. Under the FMLA, an eligible employee who cannot perform the essential functions of her position because of a serious medical condition is entitled to up to twelve workweeks of leave. 29 U.S.C. § 2612(a)(1)(D). It is unlawful "for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" an employee's right to that leave. 29 U.S.C. § 2615(a)(1). To establish an interference claim, a plaintiff must show: "(1) that she was entitled to FMLA leave, (2) that some adverse action by the employer interfered with her right to take FMLA leave, and (3) that the employer's action was related to the exercise or attempted exercise of her FMLA rights." Campbell v. Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007). "Under this theory, a denial, interference, or restraint of FMLA rights is a violation regardless of the employer's intent, and the
Ms. Melville undoubtedly has a serious medical condition. But Third Way argues that Ms. Melville cannot show that she was prevented from taking the full twelve weeks of leave, denied reinstatement following leave, or denied initial permission to take leave. See Metzler, 464 F.3d at 1180. On this point, Third Way makes much of the fact that Ms. Melville's supervisors initially encouraged and supported her decision to take leave. To the extent that any party was responsible for interfering with her FMLA leave, they argue, it was Ms. Melville herself in seeking to return to work almost immediately and without the approval of her healthcare providers. Ms. Melville counters saying any discouragement of an employee inconsistent with her right to leave amounts to interference. She believes, therefore, that Third Way's suggestion that it would offer unemployment benefits or the implication that she should take another job were adverse actions. The Court is not persuaded that Third Way's offerings in this regard were adverse but rather seem to have been made to help Ms. Melville find a way to maintain income while seeking treatment. But no matter how encouraging or supportive it may have been, the company cannot avoid the fact that according to its own records it terminated her while she might have been legally permitted to be on leave. And "any reasonable employee would have found termination materially adverse." Metzler, 464 F.3d at 1171. Ms. Melville has supported this prong with sufficient facts.
Nevertheless, Ms. Melville has failed to establish a prima facie case of FMLA interference for want of causation. The FMLA is "not a strict liability statute." Id. at 1180 (citing 29 U.S.C. § 2614(a)(3)(B) ("Nothing in this section shall be construed to entitle any restored employee to ... any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.")); see also Smith, 298 F.3d at 960. Thus, "an employee may be dismissed, preventing her from exercising her statutory right to FMLA leave if the dismissal would have occurred regardless of the employee's request for or taking of FMLA leave." Smith, 298 F.3d at 961. An "indirect causal link between the employee's dismissal and FMLA leave (i.e., the fact that they independently resulted from the same cause) [is] inadequate as a basis for recovery under the FMLA." Id. at 961. The burden to demonstrate that "an employee, laid off during FMLA leave, would have been dismissed regardless of the employee's request for, or taking of, FMLA leave" is on the defendant-employer. Id. at 963; see also 29 C.F.R. § 825.216(a) ("An employer must be able to show that an employee would not otherwise have been employed at the time reinstatement is requested in order to deny restoration to employment.").
In Renaud v. Wyoming Dept. of Family Services, the plaintiff went on FMLA leave for treatment of alcoholism the day after being suspended pending an investigation of allegations that he was drunk on duty. 203 F.3d 723, 732 (10th Cir. 2000). While he was still on leave, the plaintiff was terminated for the alcohol violation that pre-dated his taking leave. Id. He then sued under the FMLA claiming that the defendant-employer had interfered with
Third Way argues that its adverse employment action was not caused by Ms. Melville's request for FMLA leave because both that request and its termination decision were independently caused by the increasingly serious manifestations of her mental illness. Put another way, the same circumstances that made her leave necessary also rendered it impossible for Third Way to permit her to work there. Third Way also submits that it would have been in violation of Colorado law to continue to employ Ms. Melville or permit her to return to work before she had been cleared by a healthcare provider.
Like the plaintiff in Renaud, Ms. Melville was not terminated because she took leave. She was terminated because she was demonstrably a danger to herself (and possibly the young persons at Bannock House).
The ADA prohibits covered entities from discriminatorily discharging qualified individuals on the basis of disability. 42 U.S.C. § 12112(a). Determining a disabled individual's qualification for ADA protection is a two-part inquiry:
Hudson v. MCI Telecommunications Corp., 87 F.3d 1167, 1168 (10th Cir. 1996). On a claim alleging unlawful termination, the relevant time-period is the time of termination. See, e.g., Nance v. Sun Life Assur. Co. of Canada, 294 F.3d 1263, 1266 (10th Cir. 2002).
In Counts II and III, Ms. Melville alleges that she was unlawfully terminated and refused reasonable accommodation by Third Way. As with Count I, the Court treats her disabled for present purposes.
As for a reasonable accommodation, there is no evidence that she requested one. She merely requested reinstatement. Looking back, she now argues that a "limited leave for medical treatment may qualify as reasonable accommodation." See Rascon v. U.S. West Commc'ns, Inc., 143 F.3d 1324, 1333-34 (10th Cir. 1998). That may be so, but the question is not what we now know, or what the opinion of an expert who examined the plaintiff in 2019 is, but what was known and requested at the time of the adverse action. And when a plaintiff "has failed to present any evidence of the expected duration of her impairment as of the date of her termination," she cannot show she requested a reasonable accommodation. Hudson, 87 F.3d at 1169 (emphasis added; finding unpaid leave of indefinite duration unreasonable as an accommodation under the ADA). There are no facts to show that Ms. Melville was qualified, either with or without a reasonable accommodation at the time of her termination. Her allegations that she would have been able to perform the essential functions of her job had she asked for a reasonable accommodation do not controvert that she never did, in fact, request one. She has also failed to show how she could be qualified to work as a therapist given her existing medical condition and failure to disclose those conditions to the Board. Because there is a lack of evidence for essential elements of her ADA claims, summary judgment in favor of Third Way on Counts II and III is also appropriate.
Colorado recognizes "a tort claim for invasion of privacy in the nature of unreasonable publicity given to one's private life." Robert C. Ozer, P.C. v. Borquez, 940 P.2d 371, 377 (Colo. 1997). To prevail on such a claim, a plaintiff must show: (1) the fact or facts disclosed must be private in nature; (2) the disclosure must be made to the public; (3) the disclosure must be one which would be highly offensive to a reasonable person; (4) the fact or facts disclosed cannot be of legitimate concern to the public; and (5) the defendant acted with reckless disregard of the private nature of the fact or facts disclosed. Id.
In the Complaint, Ms. Melville alleged only that "Defendant Maple publicly disclosed private facts about Plaintiff, namely her mental health conditions." In response to the instant motion, Ms. Melville cites to three portions of the record she believes factually support this claim. These recount that on August 24, 2017, after Ms. Melville went to the hospital, Ms. Maple called Ms. Johnson and they decided to tell the team about it; sometime after that, Ms. Maple consulted a Dr. Messenbaugh seeking advice about what to communicate to the team about the incident; and on or around September 14, 2017, Ms. Maple told coworkers that Ms. Melville was not returning because of medical reasons. (Doc. 80-1, at 18-20; Doc. 80-10, at 3.) Each of these events, however, followed Ms. Melville personally telling coworkers about her mental condition, suicide attempts, and suicidal ideations. (Doc. 87, at 5-6.)
One who by extreme and out-rageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress. The elements are 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) the plaintiff incurred severe emotional distress. Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970). "Outrageous conduct" is conduct "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." Culpepper v. Pearl St. Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994). Even so, "[t]he outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress by reason of some physical or mental condition or peculiarity." Zalnis v. Thoroughbred Datsun Car Co., 645 P.2d 292, 294 (Colo. App. 1982).
Ms. Melville based this claim on her assertion that, despite her being "eminently qualified to work as a therapist," her "then-existing mental ailments made her particularly susceptible to stress," and Ms. Johnson's terminating her and telling her to seek less-stressful work as a waitress, given these circumstances, was outrageous. But, as the record reflects, Ms. Johnson demonstrated sympathy for Ms. Melville, and it does not go beyond the bounds of decency or offend community notions of acceptable conduct to tell an employee who is disqualified (even if temporarily) from working at a company that she is "terminated," or to offer that employee ideas as to how to improve her financial situation. See, e.g., Grandchamp v. United Air Lines, Inc., 854 F.2d 381, 384 (10th Cir. 1988) ("It is well-settled under Colorado law that discharge from employment, without more, is not outrageous conduct."); Shackelford v. Courtesy Ford, Inc., 96 F.Supp.2d 1140, 1147 (D. Colo. 2000) ("Termination from employment does not rise to the level of intentional
Finally, missing from Ms. Melville's case are any facts supporting the third element—that she did, in fact, experience severe emotional distress. In her deposition, Ms. Melville stated that, from these events, she "walked away feeling like [Ms. Johnson] was trying to tell me she was firing me for my own good, which at the time was frustrating." Though Colorado law considers a defendant's knowledge of a plaintiff's unique mental condition relevant in considering outrageousness, that does not supplant the requirement that a plaintiff suffer actual severe emotional distress, to which Ms. Melville's mere frustration does not amount.
For the foregoing reasons, the various motions to file restricted documents (Docs. 68, 77, 80, 85.) are
The parties have also filed supporting documents with appropriate motions for leave to restrict. (Docs. 68, 77, 80, 85.) Because these supporting documents contain highly sensitive medical information, the Court
