United States District Court, D. Colorado
ROBYN D. ROSS, an individual, Plaintiff,
PROFESSIONAL BUREAU OF COLLECTIONS OF MARYLAND, INC., a Maryland corporation, PHILLIP JUSTUS, an individual, and TRAVIS JUSTUS, an individual, Defendants.
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendants' Motion to
Dismiss Plaintiff's Amended Complaint and Incorporated
Brief [#19] (the “Motion”). Plaintiff
filed a Response [#29] in opposition to the Motion [#19], and
Defendants filed a Reply [#30]. The Court has reviewed the
pleadings, the entire case file, and the applicable law and
is sufficiently advised in the premises. For the reasons
set forth below, the Motion [#19] is GRANTED in part and
DENIED in part.
is a former employee of Defendant Professional Bureau of
Collections of Maryland, Inc. (“PBCM”). Am.
Compl. [#12] ¶¶ 1-2. At various times relevant to
this lawsuit, Defendant Phillip Justus and Defendant Travis
Justus each served as President of Defendant PBCM and as
members of the Board of Directors of Defendant
PBCM. Id. ¶¶ 3-4.
was hired as General Counsel of Defendant PBCM on March 29,
2013, by Defendant Travis Justus, who was the owner, founder,
and then President of Defendant PBCM. Id. ¶ 7.
Plaintiff's duties included acting as department head and
mentor for managers reporting from company departments
including compliance, auditing, quality assurance, human
resources and legal accounts; responding to Equal Employment
Opportunity Commission (“EEOC”) complaints;
managing outside counsel; renewing collection licenses in
states where required; and filing annual reports in states
where required. Id. ¶ 8.
was the mother of two young children with health conditions,
i.e., a son with a potentially deadly, anaphylactic nut and
peanut allergy, and a daughter with total blindness in one
eye, which required special ophthalmological treatment.
Id. ¶ 10. Throughout her employment with
Defendant PBCM, Plaintiff never worked less than forty hours
per week and often worked far more. Id. ¶ 16.
She only missed one full day of work due to personal illness,
as well as rare partial days to care for her children when
she could find no viable alternative. Id. ¶ 11.
asserts that throughout her employment with Defendant PBCM,
she noticed examples of the company's “culture of
hostility to female employees.” Id. ¶ 17.
She describes an incident in May of 2013 when the physically
large, male Vice President of Operations “publicly
berat[ed] and humiliat[ed]” a physically small, young
female employee and immediately thereafter similarly yelled
at Plaintiff. Id. ¶¶ 18-21. Plaintiff
describes other incidents that seem to have mostly occurred
in 2013 or possibly early 2014, including: (1) Defendant
Travis Justus instructed a female employee to “stop
being a pussy;” (2) an email was found on a company
printer in which Defendant Travis Justus's son, Matthew
Justice, spoke about a female compliance officer being
“frigid” and referenced himself and Defendant
Travis Justus's executive assistant engaging in sexual
relations; (3) Defendant Travis Justus instructed Plaintiff
to “smile more” at a hostile tenant in the
building Defendant Travis Justus owned; (4) Defendant Travis
Justus made a comment in front of the reception staff
concerning Plaintiff's figure, saying that she was
“not fat, but a good sized woman”; (5) Defendant
Travis Justus, when speaking with Plaintiff about a food
Plaintiff mentioned was high in protein, looked at Plaintiff
and asked, “You know what else is high in
protein?”, which was apparently a reference to
semen/oral sex; (6) after Plaintiff had slipped on ice
outside of the office on a morning where maintenance had
failed to shovel and salt the sidewalk, Defendant Travis
Justus, in response to seeing her torn pant leg and bleeding
knee told her, “Good, I never liked pants on you in the
first place;” (7) Defendant Travis Justus would loudly
discuss sexual enhancement procedures he was undergoing, such
as penis injections, while knowing that Plaintiff was within
earshot; (8) Defendant Travis Justus told Plaintiff, “I
know you're not stupid, you're just so feminine, but
that's fine, you're a woman;” (9) Defendant
Travis Justus forbade Plaintiff from being friends with a
subordinate female employee despite the fact that Defendant
Travis Justus, Eric Brechbill (whom Plaintiff does not
further identify), and Matthew Justice all had sexual
relationships with subordinate employees; (10) Defendant
Travis Justus began dating a female manager but attempted to
hide the relationship despite making sexually explicit phone
calls to her on recorded lines; (11) Eric Brechbill secretly
Dated: least one female subordinate; (12) Defendant Phillip
Justus made unwanted sexual advances to a receptionist over
email; and (13) Defendant Phillip Justus had a habit of
blatantly rubbing his genitals through his pants while
speaking with female employees, including Plaintiff.
Id. ¶¶ 22-26.
accordance with company policy, Plaintiff reported each of
these incidents to either Defendant Travis Justus or to Russ
Ray (“Ray”), the head of Human Resources, but
neither one ever did anything in response to her reports, and
thus, “[b]y 2014, [Plaintiff] understood that she would
be subject to hostility in the form of yelling, cursing, or
sexual innuendo on a near daily basis.” Id.
¶¶ 27-28. She therefore “began to withdraw
from interaction with the male staff as much as possible and
try to work in her office with the door closed.”
Id. ¶ 29.
October 25, 2013, Plaintiff's son woke at 1:00 a.m with
severe croup and was rushed to the emergency room, where he
was not discharged until 5:00 a.m. Id. ¶ 30(a).
Plaintiff texted Defendant Travis Justus at 2:00 a.m.
advising him that she may be late, and then texted him again
at 7:00 a.m. to say that she would be at work by 9:30 a.m.,
rather than her normal 8:00 a.m. Id. When she
arrived at work at 9:30 a.m., Defendant Phillip Justus, to
whom Plaintiff did not report and who had no role at PBCM at
the time other than a position on the board, had Plaintiff
“written up” in her personnel file for being
January 2014, Plaintiff received an urgent call from her
son's school advising her that he was not doing well.
Id. ¶ 30(b). Plaintiff advised Defendant Travis
Justus of the phone call. Id. Ten minutes later, the
school called back advising her that her son had gone into
anaphylactic shock and that his life was saved with an
injection of epinephrine. Id. Plaintiff advised
Defendant Travis Justus that she must leave immediately to
get to the hospital, but Defendant Travis Justus's only
response was to inquire as to whether Plaintiff had completed
a task and put it in the mail. Id.
2014, after Mr. Ray failed to process a vacation request
which Plaintiff had submitted approximately thirty days
prior, Plaintiff requested to take a vacation day to travel
to New York to take her son to see an allergy specialist.
Id. ¶ 30(c). Defendant Travis Justus's only
response was to ask if she could not use a vacation day and
instead only take a half day because her flight was in the
October 2014, after Defendant Travis Justus had retired and
appointed Defendant Phillip Justus as the new President of
PBCM, Plaintiff asked to attend a short meeting a few days
later at her son's school to speak to the faculty and
staff about an emergency plan in the event her son
experienced an anaphylactic allergy attack. Id.
¶ 30(d). Defendant Phillip Justus became
“enraged” saying, “You can't spring
these things on me, ” and demanded to know what other
dates Plaintiff would be out of the office. Id.
Plaintiff explained that she had just been informed of this
meeting and it was an important, one-time conference for her
son's safety at school. Id. Defendant Phillip
Justus continued to complain that this meeting, scheduled for
several days later, was equivalent to springing a request for
time off on him. Id.
December 18, 2014, after Mr. Ray again failed to process
Plaintiff's vacation request which she had submitted
approximately thirty days before, Plaintiff sent an email to
Defendant Phillip Justus, reminding him that she would be out
of the office on December 19, 2014. Id. ¶
30(e). Defendant Phillip Justus again became “enraged,
” accused her of failing to give notice, and demanded
to know what she would be doing, despite the fact that male
executives took well more than their allowable time and were
never hassled for it. Id.
the October 2014 incident detailed above, Plaintiff realized
that Defendant Phillip Justus would be worse than Defendant
Travis Justus when it came to her responsibilities as a
parent, and so she decided to file Family Medical Leave Act
(“FMLA”) paperwork to ensure that her job was not
in jeopardy on the days she needed to tend to her children.
Id. ¶ 31. Defendant Travis Justus, who was then
PBCM's Chairman of the Board of Directors, learned of
Plaintiff's intent to file FMLA paperwork, advised her
that it was an inappropriate use of the FMLA, and told her
that she should not file it. Id. ¶ 32.
December 9, 2014, Plaintiff filed her FMLA paperwork with Mr.
Ray in his capacity as head of Human Resources. Id.
¶ 33. She also informed him again that she felt targeted
by the male executives and management due to being a woman
and mother, and she asked him to formally document this
complaint. Id. Instead of creating the complaint,
Mr. Ray responded by writing a memo describing their
interaction as Plaintiff having “gone on a
tirade.” Id. A few hours later, Defendant
Travis Justus received the memo and advised Plaintiff that it
was inappropriate to complain to Human Resources that
policies were being unevenly enforced. Id. ¶
34. He then told Plaintiff that she better “watch
herself.” Id. Immediately after, Defendant
Travis Justus demanded that all state regulatory license
renewals be put on his desk so he could “review”
her work. Id. ¶ 35.
the following two weeks, Defendant Travis Justus began
returning the license renewals to Plaintiff piecemeal and
lost some of the paperwork, although he did not inform
Plaintiff of this. Id. ¶ 36. One of the states
he failed to return was the license renewal for Nebraska.
Id. In January of 2015, Plaintiff inquired with the
Nebraska Collection Licensing Agency Board as to why PBCM had
not received their renewed license. Id. ¶ 37.
She was informed that the renewal application had not been
received. Id. Plaintiff promptly informed Defendant
Phillip Justus that PBCM could not and should not operate in
Nebraska until the license was renewed, which would be in
April at the earliest. Id. ¶ 38.
December of 2014, after Plaintiff filed the FMLA paperwork,
Defendant Phillip Justus directed the system administer to
enter Plaintiff's computer to access her LinkedIn profile
and print messages between her and her predecessor, Greg
Gerkin, in which they had discussed the inappropriate sexual
relationships occurring at PBCM. Id. ¶ 40.
first paycheck after filing the FMLA paperwork docked her
vacation time for when she picked up her son, who had
vomited, from school in the middle of the day. Id.
¶ 41. The policy for executives for the entire time
Plaintiff had been employed with Defendant PBCM was that
short time missed from work for family illness/emergencies
did not need to be noted as vacation time. Id. When
Plaintiff asked about this discrepancy, Defendant Travis
Justus told her he docked her on this occasion because she
filed FMLA paperwork. Id. His words were,
“You're the one that turned that paperwork in,
otherwise I wouldn't have done that to you.”
Id. At no point did Plaintiff claim the vomiting was
due to her son's disability or that she was taking FMLA
leave. Id. In fact, Plaintiff was with Defendant
Travis Justus at a meeting with outside counsel when she
received the message from the school nurse, which meant that,
according to Plaintiff, Defendant Travis Justus was clear
that the incident was not related to the exercise of
Plaintiff's rights under the FMLA. Id.
another undated occasion, Defendant Phillip Justus screamed
at Plaintiff for informing him she had a reserved vacation
day to take her son to the doctor in a few days, claiming
that the request was not on his list. Id. ¶ 42.
Plaintiff reminded him that he had approved it already, so
that it should be on his list, and when they checked the
list, the vacation day was on the list as approved in
January of 2015, Plaintiff was singled out with a new policy
forbidding cell phones on the executive floor, despite the
fact that Plaintiff's cell phone was the only way for her
to be directly contacted in case of emergency. Id.
¶ 43. Plaintiff later discovered that she was the only
employee on the executive floor to whom this new policy
applied, as the policy contained a clause that exempted every
other PBCM executive from it, including her own executive
administrative assistant. Id.
January 24, 2015, a member of Defendant PBCM's Board of
Directors sent Plaintiff an email that began by stating:
“In this male-dominated passive/aggressive company of
which I am a part, we need to stop and breathe deep.”
Id. ¶ 44. Plaintiff interpreted this message as
mocking her in light of her history of reporting
discriminatory and inappropriate behavior by the male staff.
January of 2015, after being promoted to the role of Vice
President of Business Development, Matthew Justice began
entering Plaintiff's office and demanding the status of
documents that were of no consequence to him. Id.
¶ 45. He would speak condescendingly and attempt to
intimidate her by standing over her stating, “I'm
your boss and you have to do whatever I say.”
Id. On one occasion, Plaintiff felt physically
threatened and attempted to leave the office. Id. In
response, Matthew Justice moved abruptly to block the doorway
and keep Plaintiff from exiting, and in so doing, made
physical contact with Plaintiff, causing her fear and
humiliation, as well as a belief that she was trapped.
Id. Plaintiff was left physically shaking and crying
after this encounter. Id. When Plaintiff reported
the incident to Defendant Phillip Justus, she was told (by
being yelled at in front of her subordinates and Matthew
Justice) that Matthew Justice was an owner of Defendant PBCM
and that if he told her to do anything, she had better do it,
even if that included getting down on the floor on her hands
and knees and assembling furniture if that was what they told
her to do, and if she had a problem with that, then she could
quit. Id. ¶ 46.
January of 2015, Defendant Phillip Justus asked Plaintiff if
there was any man in the company she “didn't have a
problem with.” Id. ¶ 46. Plaintiff
answered that she had no problems with anyone who spoke
respectfully. Id. He responded by saying,
“This isn't the right job for you if you don't
like being talked to in that way.” Id. When
Plaintiff turned to leave she saw Matthew Justice laughing at
her as she walked out of the office. Id.
Sunday, February 1, 2015, Plaintiff sent an email to
Defendant Phillip Justus advising him that her son had an
anaphylactic allergy attack at church and that she might be
late the next day. Id. ¶ 48. A few days later,
Plaintiff was terminated and given a letter that explained
the bases for her termination as follows: (1) the Nebraska
license paperwork, which Plaintiff asserts was entirely the
fault of Defendant Travis Justus taking the paperwork from
Plaintiff's desk “to review;” (2) the failure
of Plaintiff to file an answer to a California Labor
Commission matter, despite the fact that an answer was not
due or appropriate to file; and (3) the lack of
representation at a California Labor hearing, when in fact
Plaintiff had confirmed that an employee would be present (an
employee who later stated he forgot about it) and Plaintiff
was in the hospital with her disabled child on what was
clearly FMLA leave. Id. ¶¶ 49-50.
result of these allegations, Plaintiff asserts three claims,
each one against all three Defendants: (1) violations of
Title VII based on: (a) disparate treatment on the basis of
sex, (b) hostile work environment, and (c) retaliation; (2)
FMLA retaliation; and (3) FMLA interference. Id.
¶¶ 54-82. Plaintiff seeks damages as a result of
these alleged violations. Id. ¶¶ 57, 70,
Standard of Review
matter jurisdiction may be challenged by a party or raised
sua sponte by the court at any point in the proceeding.
E.g., Am. Fire & Cas. Co. v. Finn, 341
U.S. 6, 16-19, (1951); Harris v. Illinois-California
Express, Inc., 687 F.2d 1361, 1366 (10th Cir. 1982);
Fed.R.Civ.P. 12(h)(3). A motion to dismiss pursuant to Rule
12(b)(1) may take two forms: a facial attack or a factual
attack. When reviewing a facial attack on a complaint
pursuant to Rule 12(b)(1), the Court accepts the allegations
of the complaint as true. Holt v. United States, 46
F.2d 1000, 1002 (10th Cir. 1995). When reviewing a factual
attack on a complaint supported by affidavits or ...