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Ross v. Professional Bureau of Collections of Maryland, Inc.

United States District Court, D. Colorado

March 17, 2017

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

         This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Amended Complaint and Incorporated Brief [#19][1] (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.[2] For the reasons set forth below, the Motion [#19] is GRANTED in part and DENIED in part.

         I. Background

         Plaintiff is a former employee of Defendant Professional Bureau of Collections of Maryland, Inc. (“PBCM”). Am. Compl. [#12] ¶¶ 1-2.[3] 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.[4] Id. ¶¶ 3-4.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         In 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.

         On 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 late. Id.

         In 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.

         In June 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 afternoon. Id.

         In 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.

         On 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.

         After 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.

         On 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.

         Over 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.

         In late 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.

         Plaintiff's 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.[5] Id.

         On 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 October. Id.

         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.

         On 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. Id.

         In 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.

         In 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.

         On 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.

         As a 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, 82.

         II. Standard of Review

         A. Fed.R.Civ.P. 12(b)(1)

         Subject 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 ...

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