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Steckmyer-Stapp v. Petsmart, Inc.

United States District Court, D. Colorado

November 29, 2016

PETSMART, INC., a Delaware corporation, Defendant.


          RAYMOND P. MOORE, United States District Judge


         This 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[1]. (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).

         Defendant 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).


         A. Undisputed Facts

         The following undisputed facts are gleaned from the court's review of the record.

         Plaintiff 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)

         Throughout 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).

         Defendant's 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).

         On July 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, p.7).

         Sometime 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).

         Ms. 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).

         On or 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., ).

         Plaintiff 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).

         However, on September 24, 2014, Plaintiff sent an email to Ms. Frey stating:

“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 ...

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