United States District Court, D. Colorado
ORDER GRANTING DEFENDANT GE CONTROLS SOLUTIONS’ AND DEFENDANT KELLY SERVICES’ MOTIONS FOR SUMMARY JUDGMENT
CHRISTINE M. ARGUELLO United States District Judge
Plaintiff Kristin Punt brings this employment discrimination case alleging two claims for relief against GE Control Solutions and Kelly Services: (1) a claim of disability discrimination under the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. § 2000e et seq., and (2) a claim of genetic information discrimination under the Genetic Information Nondiscrimination Act (“GINA”), 42 U.S.C. § 2000ff et seq. (Doc. # 1.) This matter is before the Court on Defendant GE Controls Solutions’ Motion for Summary Judgment, as well as Defendant Kelly Services’ Motion for Summary Judgment. (Docs. ## 50, 54.) As explained in greater detail below, because Punt has failed both (1) to establish a prima facie case of disability discrimination or to show that GE Control Solutions’ legitimate, nondiscriminatory reason for her termination was pretextual, and (2) to establish prima facie case of genetic information discrimination under GINA, the Court grants the instant Motions.
GE Controls Solutions is a company in Longmont, Colorado, that designs and produces hardware, software, and other materials for its parent company, General Electric. (Doc. # 54-2 at 1.) To meet some of its staffing needs, GE Controls Solutions (“GE”) entered into an agreement with Kelly Services (“Kelly”), a company that provides temporary staffing services. (Doc. # 54-3 at 1, 4-6.) Under the agreement, Kelly provided and assigned temporary employees to GE as needed. (Id.) Additionally, GE could request that Kelly remove any of these temporary employees from their assignment at GE. (Id.) Likewise, Kelly itself could cancel any employee’s assignment. (Id.)
Punt was an at-will employee of Kelly. (Doc. # 54-6 at 7, 8.) When she initially applied for employment with Kelly, Punt’s employment Application stated that “The duration of any assignment I accept depends on the needs of Kelly’s customer and may be canceled at any time by Kelly or the customer.” (Doc. # 50-2 at 2.) The Application also provided that
Upon completion of each assignment, I will notify Kelly of my availability for work. I understand I am responsible for maintaining regular contact with Kelly and failure to do so will indicate I have either voluntarily quit or am not actively seeking work.
(Id.) Punt signed an acknowledgement at the bottom of the Application, indicating that she read it, understood it, and agreed to its terms. (Id.)
After GE’s regular receptionist retired, GE requested that Kelly assign a temporary employee to fill that position. (Doc. # 65-4 at 3-4.) Joy Hansen, GE’s Director of Human Resources at the time, contacted Erin Wilgus, a Kelly employee, and mentioned that GE would consider Ms. Punt for the receptionist assignment because Ms. Punt had previously been assigned to work as a receptionist at GE on temporary, short-term assignments. (Id. at 4.)
Kelly, through Wilgus, subsequently assigned Punt to the receptionist position at GE, and her employment began on October 24, 2011. (Doc. # 54-5 at 7-8.) Punt was directed to work a forty-hour work-week, starting at 7:30 a.m. and ending at 4:30 p.m. (Id. at 9.) Physical presence and attendance at the workplace were part of Punt’s job duties and were listed as such in the receptionist job description. (Docs. ## 54-6 at 2, 10; 54-11 at 1.) GE asserts that it instructed Punt that if she were to be absent or late, she was expected to contact someone at GE to let them know. Specifically, GE contends that Punt was supposed to contact both Kelly and GE. (Doc. # 54-5 at 8.) Punt denies that she was supposed to contact GE, and asserts that she was supposed to contact Elise Greenlee, the administrative assistant to Sledge (GE’s former Global Sales Leader for Inspection Technologies), if she as ever going to be late or absent. (Doc. # 65-1 at 24-25.) However, the parties do not dispute that if Wilgus knew that Punt was to be absent, Wilgus would contact GE directly to inform it of her absence. (Doc. # 65-1 at 23.)
During the course of her six weeks of employment with GE, Punt never worked a full, forty-hour work week. Specifically, she was absent from work on six occasions: November 11, November 15, November 23, November 25, November 28, and November 29. (Doc. # 54-10 at 1-2.) The GE office was closed on November 11 and November 25 for holidays. (Doc. # 65-1 at 10-11.) Three of Punt’s other absences correspond with documented medical appointments. Specifically, on November 15, Punt had a biopsy of her right breast. (Doc. # 54-5 at 10, 11.) On November 23, Punt had her first appointment with her cancer physician. (Doc. # 65-1 at 13-16.) On November 28, Punt had an appointment with her cancer surgeon. (Id. at 17.)
Punt was also late to work on three occasions: by an hour and a half on October 24, by four and a half hours on October 27, and by three hours on November 30. (Doc. # 54-10 at 1-2.) The November 30 date corresponds with an MRI appointment, but the other two occasions of tardiness are unexplained. (Doc. # 65-1 at 19-20.) Finally, Punt left work early on three occasions: by 30 minutes on October 27, by an hour and fifteen minutes on November 2, and by five hours on November 22. (Doc. # 54-10 at 1.) On November 2, Punt had a follow-up mammogram appointment. (Doc. # 65-1 at 9.) On November 22 or 25, Punt received a call from her doctor’s office with the results of her biopsy.
Punt’s other absences, late arrivals, and early departures do not correspond with medical appointments and remain unexplained by Punt. (Doc. # 65-5 at 9-10, 11-12.) As for the ones that do correspond with medical appointments, Punt asked for the time off in advance for some, but not all, of these dates. Specifically, it is undisputed that Punt asked Wilgus for time off for the biopsy on November 15. (Doc. # 65-1 at 29.) Punt also asserts that she asked Joy Hansen, another GE employee, for time off for other appointments and tests, though she does not specify the appointments for which she made these requests, and she testified in her deposition that she believed that the requests were made within two weeks of the end of her assignment. (Doc. # 65-1 at 32.)
Punt alleges that she told Wilgus and Greenlee about her family history of breast cancer prior to her biopsy; her mother, grandmother, great grandmother, cousin, and aunt all suffered from the disease. (Doc. # 65-1 at 27.) The parties dispute whether she told Joy Hansen about her family history of breast cancer. (Docs. ## 65 at 4, 69 at 3.) The parties also dispute whether Sledge knew of Punt’s family history of breast cancer. (Docs. ## 65 at 6, 69 at 5.) After her biopsy results indicated that Punt, in fact, had breast cancer, Punt also told Wilgus and Greenlee about the diagnosis. (Doc. # 65-1 at 27, 31.)
On December 5, Punt had another MRI appointment. (Doc. # 65-1 at 34.) On that day, Punt emailed Wilgus at 10:37 a.m., stating:
After talking to my husband and doctor it is in my best interest not to come to work this week at all. I like my job at GE very much but I’m concerned that they are not going to be willing to work with me. I have barely missed work and they are already annoyed it sounds. I was told to tell Elise [Greenlee] when I would be late because Joy gets in between 8:30 and nine in the morning . . . . Getting surgery takes some appointments and tests and it sounds like GE [doesn’t] want me to take off anytime. I guess we should both be concerned if this will be a right fit. Let me know what you think. I hope to continue on Monday.
(Doc. # 65-1 at 35-36.) That same day, at 5:47 p.m., Wilgus emailed Punt stating: “Please contact me ASAP. I need to let GE know whether you are going to be at work tomorrow.” (Id. at 35.) Punt responded by email at 6:35 p.m., stating:
I have so much to take care of this week with tests that I don’t know how I can come to work tomorrow… If taking a week off is out of the question I understand. Elise [Greenlee] doesn’t have that much work to do according to her and I’m surprised this has become such a problem. This is looking like very early stage breast cancer that will allow me to come to work and have only five times of radiation.
(Id. at 34-35.)
On or around December 5, Hansen and Sledge contacted Wilgus to end Punt’s assignment, stating that GE “needed an employee that’s [sic] going to be able to show up and fulfill the needs of the position.” (Doc. # 54 at 10-11). Hansen personally spoke with Wilgus and stated that she was aware that Punt had missed consecutive days of work and that Punt was undergoing medical treatment, but that GE needed someone who would show up at work. (Doc. # 65-1 at 40.) Wilgus subsequently informed Punt that GE was terminating her assignment. (Id. at 40-41.) Punt alleges that, in the course of this conversation, Wilgus also told her that Hansen had told Wilgus that Punt would be “unreliable” now that Punt had been diagnosed with breast cancer. (Id. at 33, 42.) Wilgus testified that she never said this to Punt. (Doc. # 69-1 at 6.) After Punt’s assignment to GE was terminated, Greenlee was asked to fill in for Punt’s receptionist duties until GE found a replacement. (Doc. # 65-1 at 31.) On February 13, 2012, Kelly offered Ms. Punt an additional assignment after her assignment with GE - a one-day assignment at Array BioPharma, which she turned down because she was working. (Doc. # 50-1 at 98, 101.) Punt also admitted that Kelly never officially terminated her, and that she knew that she had an obligation to call Kelly to advise them she was available for work and that had done so (“practically harassed them for work”) in the past. (Id. at 96-97, 103.) Punt also testified that she contacted Kelly “once” to tell them that she was available for work, but after being asked when she did so, she stated “They knew I was available for work . . . I don’t know, ” and when she was asked again, stated “I don’t know [if I called Kelly], because I was filing an EEOC claim.” (Id. at 95-96.) She also admitted that she “probably” did not call Kelly to ask them for work after December 5, 2011. (Id. at 97.)
B. PROCEDURAL HISTORY
On September 16, 2014, Punt filed her Complaint against both GE and Kelly, alleging claims of relief for disability discrimination under the ADA and genetic information discrimination under GINA. (Doc. # 1.) Kelly filed a Motion for Summary Judgment on July 23, 2015, and GE filed a Motion for Summary Judgment on July 24, 2015 (Doc. ## 50, 54.) On August 31, 2015, Punt filed a Brief in Opposition to both Motions. (Doc. ## 64, 65.) Both GE and Kelly filed timely Replies. (Doc. ## 68, 69.) Finally, the Court granted leave to allow Punt to file a Sur-Reply. (Doc. # 73).
II. STANDARD OF REVIEW
Summary judgment is warranted when “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). A fact is “material” if it is essential to the proper disposition of the claim under the relevant substantive law. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). A dispute is “genuine” if the evidence is such that it might lead a reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, Okl., 119 F.3d 837, 839 (10th Cir. 1997). In reviewing motions for summary judgment, a court may not resolve issues of credibility, and must view the evidence in the light most favorable to the non-moving party-including all reasonable inferences from that evidence. Id.; Hansen v. PT Bank Negara Indonesia (Persero), 706 F.3d 1244, 1251 (10th Cir. 2013) (“a judge may not make credibility determinations on summary judgment”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The evidence of the non-movant is to be believed, and all ...