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Preeson v. Parkview Medical Center, Inc.

United States District Court, D. Colorado

March 30, 2017

KIMBERLY PREESON, Plaintiff,
v.
PARKVIEW MEDICAL CENTER, INC.; LAURA HARRISON, individually and as Director of Admissions and Financial Counseling of Parkview Medical Center, Inc., Defendants.

          OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTIONS FOR SUMMARY JUDGMENT

          Marcia S. Krieger United States District Court

         THIS MATTER comes before the Court on Defendants' Motions for Summary Judgment (# 48, 60), Plaintiff's Reponses (# 51, 61), and Defendants' Replies (# 53, 62). Also before the Court is Plaintiffs' Motion to Restrict (# 52) and Defendants' Response (# 54).

         JURISDICTION

         The Plaintiff asserts claims under the Americans with Disabilities Act of 1990, 42 U.S.C. § 1210, et seq. (“ADA”) and the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”). The Court exercises jurisdiction over these claims pursuant to 28 U.S.C. § 1331. The Court exercises jurisdiction over Plaintiff's related state law claim pursuant to 28 U.S.C. § 1367.

         FACTS

         The Court offers a brief summary of the pertinent facts here and elaborates as necessary in its analysis. The parties disagree as to a number of facts and where facts are in dispute, this recitation describes the facts taken in the light most favorable to Ms. Preeson.

         A. Background

         Ms. Preeson, was employed by defendant Parkview Medical Center (“Parkview”) as a financial counselor/eligibility specialist from October of 2008 through December of 2014. Throughout her employment, Ms. Preeson suffered various health reversals, including cancer treatment and a diagnosis of Cyclic Vomiting Syndrome (“CVS”), which periodically causes her to experience multi-day bouts of nausea and vomiting. Some of these health issues required her to take leaves of absence from work, all of which were approved by Parkview. Those leaves were generally designated as FMLA-approved, either contemporaneously or retroactively. By all appearances, Parkview regarded Ms. Preeson as an exemplary employee during this period.

         In early 2013, Ms. Preeson prepared a grant proposal, seeking funds from Connect for Health Colorado (“C4H”) to create a new Financial Counseling Department within Parkview. Ms. Preeson believed that, if the project was approved, she would be appointed to manage the new department. Parkview's CEO, Mike Baxter, and its CFO, Bill Patterson, shared that belief and told Ms. Preeson so. The grant request was partially successful: Parkview was accepted to participate in the program, but C4H did not award Parkview any funds. Nevertheless, Parkview proceeded with plans to create the department.

         In June 2013, Ms. Harrison was hired by Parkview as its Director of Admissions and Financial Counseling. Ms. Harrison thus became Ms. Preeson's indirect supervisor - that is, she supervised Ms. Preeson's supervisor(s). In July 2013, Ms. Harrison complimented Ms. Preeson's knowledge and experience and the “passion you have for your work”

         B. Absenteeism incident

         On September 30, 2013, Ms. Preeson was injured in a car accident. The next day, she called Ms. Harrison to let her know that she would be requesting FMLA leave to recover. Ms. Preeson's leave was approved by Parkview, and she remained out on leave until October 14, 2013. On October 16, 2013, two days after Ms. Preeson returned to work, Ms. Harrison presented Ms. Preeson with a list showing her absences from work dating back to 2012. It is undisputed that Ms. Preeson's total number of absences and tardy arrivals over the previous 12 months had exceeded the number permitted under Parkview's attendance policy, potentially exposing her to disciplinary action. Ms. Harrison told Ms. Preeson that if she could not justify each absence, she would be terminated. Ms. Preeson informed Ms. Harrison that some of the absences had related to medical issues and could be covered under the FMLA, and it appears that there was some discussion between the women as to whether Ms. Preeson had already been approved by Parkview to take intermittent FMLA leave during the period at issue and whether FMLA approval for a leave could be sought retroactively. Ms. Harrison demanded to see Ms. Preeson's medical records, and Mr. Preeson agreed to obtain them.

         The following day, Ms. Preeson informed Ms. Harrison that she had spoken to her doctor and to an attorney and that she believed that some of the absences would be covered by a request for retroactive FMLA leave. Ms. Harrison confirmed with Parkview's Human Resources department that Ms. Preeson had applied for FMLA leave for those absences and been approved. Thereafter, Ms. Harrison wrote to Ms. Preeson stating “[e]ven though I do not have documentation as to why you were absent each time, if it falls within the intermittent FMLA time period [that Ms. Preeson had requested approval for], I am more than willing to excuse that absence if it was documented at the time.” Ms. Harrison did not pursue any further discipline Ms. Preeson and did not inquire about her absences again.

         In October 2013, Ms. Preeson had a testy exchange with Ms. Harrison over an incident involving the assignment of new office space. Ms. Preeson had complained to Ms. Harrison about an issue, and Ms. Harrison later conveyed that conversation to one of Ms. Preeson's co-workers. After the co-worker confronted Ms. Presson about the complaint, Ms. Preeson sent an e-mail to Ms. Harrison, stating that she was upset by Ms. Harrison failing to treat the complaint as confidential. Ms. Harrison responded in writing that there was no time “for this sort of squabbling.” The following day, Ms. Harrison summoned Ms. Preeson into her office and “screamed at [her], ” telling her to “never send an e-mail reprimanding her again.” Ms. Preeson contacted Darrin Smith, Parkview's Vice President of Human Resources, asking for a meeting to discuss her issues with Ms. Harrison. Ms. Preeson told Mr. Smith about her concerns that Ms. Harrison was being hostile and aggressive towards her, that she thought Ms. Harrison was looking for a reason to terminate her and deprive her of a promotion to head the newly-created Financial Counseling Unit, and that she believed that Ms. Harrison “had not treated me in the manner that she did prior to be taking FMLA leave and prior to [her] finding out that I had health issues associated with cancer and nausea and vomiting.” Mr. Smith assured Ms. Preeson that her job was not in jeopardy and that Ms. Harrison was not authorized to discipline her for absences that occurred in 2012.

         C. Supervisor promotion

         In or about November 2013, Parkview posted an opening for a supervisor[1] position in the Financial Counseling Department - the unit that Ms. Preeson's C4H grant proposal created and that Parkview's executives had previously suggested she should receive. Ms. Preeson and her co-worker, Nadia Caldera, both applied for the position. Ms. Harrison and another supervisor, Lori Thomason, interviewed both Ms. Preeson and Ms. Caldera. Ms. Harrison also spoke to third parties to get their opinions about the two candidates. Ms. Harrison contends that two of these individuals, Julie Drake and Brenda LaCombe, spoke negatively about Ms. Preeson's work, but complimented Ms. Caldera. (As discussed in greater detail below, Ms. Preeson disputes that the women stated these things to Ms. Harrison and accuses Ms. Harrison of fabricating Ms. LaCombe's comments.) On or about November 14, 2013, Ms. Harrison selected Ms. Caldera for the position. .

         Ms. Caldera thus became Ms. Preeson's supervisor. At that time, Ms. Harrison instructed Ms. Caldera to “keep specific documentation on people that were difficult, ” including Ms. Preeson. Ms. Caldera testified that she understood that Ms. Harrison “was asking [her] to find ways to get rid of Ms. Preeson.” Ms. Caldera testified that Ms. Harrison stated that Ms. Preeson's requests for FMLA leave were “a bunch of baloney.” Ms. Caldera described Ms. Harrison as being particularly intolerant of employee absences and tardiness and that if someone complains about her, “they're going to get fired.”

         The record does not address any particular issues occurring between the end of 2013 and November 2014. However, in early November 2014, Ms. Preeson was absent for several days due to an episode of CVS. She sought and was approved to use FMLA leave for that absence.

         D. Termination

         On December 16, 2014, Ms. Preeson arrived at Parkview at approximately 6:50 a.m. for her 7:00 a.m. shift. She temporarily parked in a patient parking area near the front of the building, intending to bring Christmas decorations in from her car. She clocked in at 6:54 a.m., unloaded the Christmas decorations, and encountered a patient with whom she had a 7:00 a.m. appointment. She told the patient that she had had a busy morning, that she had just returned from dropping her son off at school, that she had to go move her car to an employee parking area, and she would return shortly for the appointment. The patient told her to take her time and that he wanted to go run an errand. Ms. Preeson moved her car to the employee parking area, and on her way back to Parkview, experienced a wave of nausea. She went to a restroom nearby (away from her regular work area) to take medication and wait out the episode. She returned to Parkview's lobby at approximately 7:10 a.m., finding the patient there. (She states that it appeared the patient had just arrived, having gone to a nearby supermarket to purchase pastries for the Parkview staff.) She then completed her appointment with the patient.

         The following day, Ms. Harrison summoned Ms. Preeson to a meeting with her and Christine Velasco, a Human Resources Manager. At the meeting, Ms. Harrison relayed a significantly different version of the previous day's events. Ms. Harrison stated that Judy Drake, Parkview's receptionist, encountered the patient in the lobby at or around 7:20 a.m. The patient reported to Ms. Drake that he was here for a 7:00 a.m. appointment with Ms. Preeson, and that Ms. Preeson had told the patient that she was leaving to take her son to school. Ms. Preeson explained to Ms. Harrison that the patient must have been confused and explained her version of events, beginning with moving the Christmas decorations. Ms. Velasco then told Ms. Preeson that clocking in, and then taking the decorations out of her car and moving her car while on the clock, constituted the prohibited act of leaving the premises during work hours. Ms. Preeson protested that employees leaving the building during work hours to move their cars (and to go to Starbucks, to the bank, to fast food restaurants, to stores for sales, and so on) was a practice that was well-known and approved of by Ms. Caldera. She noted that she was aware that both Ms. Caldera and Ms. Harrison themselves would leave during work hours to move their cars and that she had once complained to Ms. Harrison directly that Ms. Caldera was leaving during work hours to get a pedicure, an action that did not result in action by Ms. Harrison. Ms. Preeson again stated that her delay in arriving was due to her nausea.

         Ms. Velasco stated that she would look into the matter and placed Ms. Preeson on administrative leave. Ms. Velasco then contacted the patient, who repeated his understanding that Ms. Preeson had left to take her son to school, and she also took a statement from Ms. Drake. Ms. Harrison and Ms. Velasco presented this information to Mr. Smith. Mr. Smith determined that Ms. Preeson should be terminated for falsification of time. He stated that even if he had believed her explanation of the events, he still would have terminated her for the alternative reason that she left to go move her car after clocking in.

         Ms. Preeson filed a charge of discrimination with the EEOC, [2] and, after obtaining a Right to Sue Notice, commenced this action. In her Amended Complaint, Ms. Preeson asserts eight claims for relief: six of which are brought against Parkview: (i) interference with FMLA rights, arising from several different events; (ii) retaliation for exercise of FMLA rights, based o her non-selection for the supervisor position and her termination; (iii) retaliation for the exercise of rights under the ADA; (iv) discrimination on the basis of disability (cancer) in violation of the ADA; (v) discrimination on the basis of disability (CVS) in violation of the ADA; (vi) discrimination in violation of the Colorado Anti-Discrimination Act (“CADA”); and two claims that she brings against Ms. Harrison personally: (vii) discrimination in violation of CADA; and (viii) libel per se, arising from Ms. Harrison falsely claiming that Ms. LaCombe gave negative references for Ms. Preeson.

         Both Parkview and Ms. Harrison move for summary judgment in their favor on all claims. In the course of briefing that motion, Ms. Preeson agreed with withdraw both of her claims under CADA and her claim for ADA retaliation.

         ANALYSIS

         A. Standard of Review

         Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995). A trial is required if there are material factual disputes to resolve. As a result, entry of summary judgment is authorized only “when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Savant Homes, Inc. v. Collins, 809 F.3d 1133, 1137 (10th Cir. 2016). A fact is material if, under the substantive law, it is an essential element of the claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if the conflicting evidence would enable a rational trier of fact to resolve the dispute for either party. Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013).

         The consideration of a summary judgment motion requires the Court to focus on the asserted claims and defenses, their legal elements, and which party has the burden of proof. Substantive law specifies the elements that must be proven for a given claim or defense, sets the standard of proof, and identifies the party with the burden of proof. See Anderson, 477 U.S. at 248; Kaiser-Francis Oil Co. v. Producer's Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). As to the evidence offered during summary judgment, the Court views it the light most favorable to the non-moving party, thereby favoring the right to trial. See Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         Motions for summary judgment generally arise in one of two contexts - when the movant has the burden of proof and when the non-movant has the burden of proof. Each context is handled differently. When the movant has the burden of proof, the movant must come forward with sufficient, competent evidence to establish each element of its claim or defense. See Fed. R. Civ. P. 56(c)(1)(A). Presumably, in the absence of contrary evidence, this showing would entitle the movant to judgment as a matter of law. However, if the responding party presents contrary evidence to establish a genuine dispute as to any material fact, a trial is required and the motion must be denied. See Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015); Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013).

         A different circumstance arises when the movant does not have the burden of proof. In this circumstance, the movant contends that the non-movant lacks sufficient evidence to establish a prima facie case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party must identify why the respondent cannot make a prima facie showing; that is, why the evidence in the record shows that the respondent cannot establish a particular element. See Collins, 809 F.3d at 1137. If the respondent comes forward with sufficient competent evidence to establish a prima facie claim or defense, then a trial is required. Conversely, if the respondent's evidence is inadequate to establish a prima facie claim or defense, then no factual determination of that claim or defense is required and summary may enter. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007).

         B. ...


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