United States District Court, D. Colorado
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTIONS FOR SUMMARY JUDGMENT
S. Krieger United States District Court
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
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.
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.
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.
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.
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
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.
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.
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.
about November 2013, Parkview posted an opening for a
supervisor 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. .
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.”
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.
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.
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.
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
Preeson filed a charge of discrimination with the EEOC,
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.
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.
Standard of Review
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.
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).
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).
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.