United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
RAYMOND P. MOORE, United States District Judge
case involves a dispute between Plaintiff Melissa
Streckmyer-Stapp (Plaintiff), and her former employer
Defendant PetSmart, Inc., (Defendant). Plaintiff alleges two
claims against Defendant: (1) Family and Medical Leave Act
(FMLA) interference in violation of 29 U.S.C.
§§2615(a)(1); 2617(a) and 29 C.F.R. §825.220;
and (2) retaliation for using FMLA leave in violation of 29
U.S.C. §§ 2615(a)(2); 2617(a) and 29 C.F.R.
§825.220. (ECF No.1). Plaintiff alleges that Defendant
interfered with her FMLA leave by: failing to send all mailed
correspondence regarding Plaintiff's FMLA leave to her
address of record; misplacing her completed certification;
and failing timely to notify Plaintiff as to the status of
her requested leave. (ECF No. 36, pp.14-10). Plaintiff asserts
that Defendant retaliated by terminating her employment on
September 1, 2014, four weeks before the conclusion of her
FMLA leave. (ECF No. 36, pp.13-19).
moves for Summary Judgment against Plaintiff's claims
arguing; (1) that it did not interfere with her FMLA leave
given that she took a full 12 weeks of leave and was
reinstated to her former position and (2) Plaintiff's
retaliation claim fails as a matter of law because (i) she
was not terminated, and (ii) any “termination”
was not related to Plaintiff's exercise of her FMLA
rights. (ECF Nos. 33; 39).
following undisputed facts are gleaned from the court's
review of the record.
began her employment with Defendant in October 2011. (ECF
Nos.33-3, p.10; 36-2, p.1; 39-2, p.1). Plaintiff began work
with Defendant as a cashier but, beginning in the spring of
2012, she worked as a pet stylist. (ECF Nos. 33-3, p.11;
36-2, pp.1-2; 39-2, p.1). At all relevant times, Defendant
PetSmart's Lakewood store's manager was Joel Stretz,
operations manager was Kevin Hegstrom, salon manager was
Natasia Van Meer and benefits administrator was Danielle
Frey. (ECF Nos. 33-3, pp.2, 8; 36-2, p.2; 39-2, pp.1-2). Ms.
Frey worked out of a benefits office located in Phoenix
Arizona. (See e.g., ECF No. 33-19)
her employment, Plaintiff worked at the Lakewood, Colorado,
PetSmart store located approximately 10-15 minutes from her
home. (ECF Nos. 33-3, p.6; 36-2, p.1; 39-2, p.1).
Plaintiff's adult daughter Katie Wood's home was also
about a 10 minute drive from the Lakewood PetSmart store.
Id. Beginning in March 2014 and through June 2014,
Plaintiff's daughter Katie complained of migraine
headaches. (ECF Nos. 33-3, pp.14-15; 36-2, p.2; 39-2, p.2).
At the end of June 2014, Katie passed out at her work place
and was taken to hospital where, after testing, she was
diagnosed with a brain tumor. Id. Katie was
scheduled for surgery on July 2, 2014. Id. Her
post-operative diagnosis was a Stage IV glioblastoma. (ECF
Nos. 33-3, p.13; 33-4, p.1; 36-2, p.2; 39-2, p.2). On or
about July 7, 2014, Plaintiff discussed taking leave from
work to care for her daughter with Mr. Stretz,
Plaintiff's store manager. (ECF Nos. 33-4, p.1; 36-2,
p.2; 39-2, p.2).
policy on FMLA leave, posted on its website, states that
employees are required to “submit certification from a
health care provider to substantiate that the leave is due .
. . within 21 days of receipt of the certification
form.” (ECF Nos. 33-8, p.2; 36-2, p.3; 39-2, pp.2-3).
The policy further provides that “[i]f the associate
fails to provide the certification within a reasonable time
PetSmart has the right to deny the leave.” Id.
Defendant's Attendance and Tardiness Procedure states
“[a]ssociates will be considered to have voluntarily
resigned employment from PetSmart if they are absent for two
(2) consecutive scheduled days without proper notification to
PetSmart.” (ECF Nos. 33-10, p.1; 36-2, p.4; 39-2, p.4).
8, 2014, Plaintiff was listed in Defendant's internal
system as being on a FMLA leave of absence effective July 7,
2014. (ECF Nos.1, p.2; 33-12, p.2; 33-13; 36-2, p.5; 39-2,
p.5). On July 11, 2014, Ms. Frey sent Plaintiff the required
Notice and Healthcare Provider Certification form which
stated that Plaintiff was to have it completed and return it
to Ms. Frey by July 28, 2014. (ECF Nos. 33-4, p.3; 33-14,
p.2; 36-2, p.6; 39-2, p.6). Plaintiff received the Notice and
Healthcare Provider Certification form sent by Ms. Frey on or
about July 14, 2014. (ECF Nos. 33-4, p.2; 36-2, p.7; 39-2,
in the first week of August, 2014, Ms. Frey telephoned
Plaintiff's home and told Mr. Sapp (Plaintiff's
husband) that she had not yet received the FMLA certification
paperwork. (ECF Nos. 1, p.2, ¶11; 33-6, p.8; 36-2, p.8;
39-2, p.9). In that telephone conversation, Mr. Sapp told Ms.
Frey that he had dropped off the completed form at the
Lakewood store approximately two weeks previously. (ECF Nos.
1, p.2, ¶11; 33-6, p.9; 36-2, p.8; 39-2, p.9).
Immediately following that call, Ms. Frey telephoned the
Lakewood store and spoke with the operations manager Kevin
Hegstrom who did not remember receiving Plaintiff's form
but said he would look for it. (ECF Nos. 33-6, pp.11-13;
36-2, p.8-9; 36-3, pp.14-17; 39-2, p.9). On or about August
5, 2014, Ms. Frey left a voicemail on Plaintiff's home
phone asking her to contact Ms. Frey because she still did
not have Plaintiff's completed certification form. (ECF
Nos. 1, p.2, ¶12; 33-4, pp.5-7; 36-2, p.8; 39-2, p.9).
Frey, in a letter to Plaintiff dated August 22, 2014, stated
that because she had not received “any information
validat[ing] your need for a leave of absence, ”
Plaintiff's employment “will be terminated for job
abandonment effective 9/1/2014.” (ECF Nos. 1, p.2,
¶13; 33-17; 36-2, p.10; 36-3, p.17; 39-2, p.12).
Plaintiff during this time did not speak directly to Ms.
Frey. (ECF Nos. 33-6, p.9; 36-2, p.12; 39-2, p.13). By late
August 2014, before she received Ms. Frey's August 22,
2014, letter, Plaintiff was looking for a new job. (ECF Nos.
33-5, pp.11-12; 33-6, p.13; 36-2, p.8; 39-2, p.9).
about September 5, 2014, Ms. Frey received a fax from the
Lakewood store manager, Mr. Stretz containing Plaintiff's
FMLA certification forms. (ECF Nos. 1, p.2, ¶15; 33-7,
p.2; 36-2, p.13; 39-2, p.13). Ms. Frey then sent Plaintiff a
Designation Notice dated September 10, 2014, stating that
Plaintiff's FMLA leave request is approved and began
“7/7/2014 - through 9/28/2014 = 84 days”. (ECF
Nos. 1, p.3, ¶16; 33-9, 33-9, p.2, ¶8; 33-11; 36-2,
p.14; 39-2, p.15). Ms. Frey also sent Plaintiff a letter
dated September 10, 2014, stating:
“Your approved FMLA will end on 9/28/2014. PetSmart
expects you to report to work on 9/29/2014, at your regular
position. If you are unable to return to work on 9/29/2014,
please contact Danielle Frey . . . .”
(ECF No. 33-11, p.1, Ex 2 to Frey Decl., ).
did not call or talk to anyone at PetSmart with regard to the
September 10, 2014, communication from Ms. Frey. (ECF Nos.
33-5, pp.1-3; 36-2, p.15; 39-2, p.15).
on September 24, 2014, Plaintiff sent an email to Ms. Frey
“Due to recent circumstances involving interference and
retaliation with my FMLA rights, and my current mental status
due from [sic] all of this I am unable to return to my
workplace. I am ...