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Daley v. Alpine Urology, P.C.

United States District Court, D. Colorado

April 13, 2016

KELLY DALEY, Plaintiff,
ALPINE UROLOGY, P.C., a Colorado professional corporation, Defendant.



Currently before the Court are the following motions: (1) Plaintiff’s Motion for Summary Judgment (Doc. # 45); (2) Defendant’s Motion for Summary Judgment (Doc. # 49); and (3) Plaintiff’s Motion to Strike or in the alternative Plaintiff’s Reply to the Defendant’s Supplemental Response (Doc. # 57). For the reasons set forth below, the Court denies Plaintiff’s motion for summary judgment, grants in part Defendant’s motion for summary judgment, and denies as moot Plaintiff’s motion to strike.


Defendant Alpine Urology, P.C. provides urologic medical care and services and is located in Boulder, Colorado. (Doc. # 28 at 1 ¶ 1.) Plaintiff Kelly Daley was employed by Defendant as a medical assistant from December 6, 2010, to October 3, 2014. (Doc. # 28 at 5 ¶ 32.) Plaintiff alleges that Defendant did not properly pay her for the time that she worked, including overtime, and that she was improperly terminated when she sought to protect her rights. (Doc. # 28 at 5-6 ¶¶ 33-49.)

Plaintiff filed her First Amended Complaint (“FAC”) on June 23, 2015. (Doc. # 28.) In her FAC, Plaintiff asserts the following claims: (1) a violation of the Fair Labor Standards Act (“FLSA”) (claim one); a violation of the Colorado Wage Act (“CWA”) (claim two); unjust enrichment (claim three); and termination in violation of public policy (claim four). (Doc. # 28.)

Plaintiff filed her summary judgment motion on October 21, 2015 (Doc. # 45), and Defendant filed its summary judgment motion on October 23, 2015 (Doc. # 49). On December 21, 2015, Defendant filed a supplement to its response to Plaintiff’s summary judgment motion (Doc. # 56), and Plaintiff moved to strike this supplement on December 4, 2015 (Doc. # 57).


Summary judgment is proper if the movant demonstrates that there is “no genuine issue as to any material fact” and that it is “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). 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, Okla., 119 F.3d 837, 839 (10th Cir. 1997). When considering a motion for summary judgment, a court must “construe the factual record and reasonable inferences therefrom in the light most favorable to the nonmovant.” Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir. 1997).

“The movant bears the initial burden of making a prima facie demonstration of the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). “If a party that would bear the burden of persuasion at trial does not come forward with sufficient evidence on an essential element of its prima facie case, all issues concerning all other elements of the claim and any defenses become immaterial.” Id. at 670. “[A] movant that will not bear the burden of persuasion at trial need not negate the nonmovant’s claims.” Id. at 671. “Such a movant may make its prima facie demonstration simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant’s claim.” Id. “If the movant carries this initial burden, . . . the burden shifts to the nonmovant to go beyond the pleadings and ‘set forth specific facts’ that would be admissible in evidence in the event of a trial from which a rational trier of fact could find for the nonmovant.” Id. (quoting Fed.R.Civ.P. 56(e)). If the evidence advanced by the non-moving party “is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).

Where, as here, the parties have filed cross-motions for summary judgment, each motion is considered separately and “the denial of one does not require the grant of another.” Buell Cabinet Co., Inc. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979). However, because the Court is faced with cross-motions for summary judgment, it is “entitled to assume that no evidence needs to be considered other than that filed by the parties.” James Barlow Family Ltd. P’ship v. David Munson, Inc., 132 F.3d 1316, 1319 (10th Cir. 1997).

A. Plaintiff’s FLSA Claim

The FLSA requires overtime pay of time and a half of regular pay for certain employees who work more than forty hours per week and who are “engaged in commerce . . . or . . . employed in an enterprise engaged in commerce.” 29 U.S.C. § 207(a)(1); see also Reagor v. Okmulgee Cty. Family Res. Ctr., 501 Fed.Appx. 805, 808 (10th Cir. 2012). Thus, “[e]mployment may be covered under the [FLSA] pursuant to either ‘individual’ or ‘enterprise’ coverage.” Tony and Susan Alamo Found. v. Sec’y of Labor, 471 U.S. 290, 295 n.8 (1985).

For purposes of enterprise coverage, the FLSA defines “enterprise engaged in commerce” as an enterprise that “has employees engaged in commerce or . . . that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person” and “is an enterprise whose annual gross volume of sales made or business done is not less than $500, 000 (exclusive of excise taxes at the retail level that are separately stated).” 29 U.S.C. § 203(s)(1)(A).

For purposes of individual coverage, the FLSA requires that the employee be “engaged in commerce.” 29 U.S.C. § 203(s)(1)(A). The Tenth Circuit has interpreted this to mean that the employee “must directly participate in the actual movement of persons or things in interstate commerce.” Reagor, 501 Fed.Appx. at 809 (internal quotation marks and citation omitted). To be eligible for individual coverage under the FLSA, the employee “must either work for a transportation or ...

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