United States District Court, D. Colorado
EMILY M. VANCE, Plaintiff,
TOLMAR, INC., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
S. Krieger, Chief United States District Judge.
MATTER comes before the Court pursuant to the
Defendant's Motion for Summary Judgment
(#47), the Plaintiff's Response
(#48), and the Defendants' Reply
Court exercises jurisdiction over this matter pursuant to 28
U.S.C. § 1331 and 28 U.S.C. § 1367.
Court offers a brief summary of the facts here and elaborates
as necessary in its analysis. All evidence is construed most
favorably to Ms. Vance.
Plaintiff Emily M. Vance worked for the Defendant TOLMAR,
Inc. (“TOLMAR”) as a Project Manager. Throughout
2012, 2013, and early 2014, Ms. Vance was required to take
her daughter to therapy appointments, which resulted in her
frequently being absent from work or arriving late.
Initially, TOLMAR accommodated this and did not require Ms.
Vance to make formal requests for time off.
December 2013, Ms. Vance received a performance review that
she “fully meets expectations.” However, her
immediate supervisor, Susan Carter, who had never previously
taken issue with her attendance or punctuality, criticized
her for her absences and late arrivals. In response to the
performance review and Ms. Carter's criticism, Ms. Vance
wrote on the performance review,
I have comments on how my review was presented to me although
I do not wish to share as a decision has been made and
judgment passed based on one side of the story.
early 2014, Robyn Vilkaitis, TOLMAR's vice president for
human resources, instructed Ms. Vance to submit a formal
request for leave under the Family Medical Leave Act
(“FMLA”) for time off to take her daughter to
therapy. Ms. Vance complied and requested leave for 30 to 60
additional therapy sessions. When Ms. Carter saw Ms.
Vance's request, she said, “This is ridiculous, why
do you need this extra time? You just had time to manage
that.” But TOLMAR ultimately granted her request,
provided that Ms. Vance change her daughter's therapy
appointments from Fridays to Wednesdays.
approximately the same time, Ms. Vance was subjected to
unwelcome sexual advances from a co-worker, Scott Pfauth,
which included inappropriately touching Ms. Vance on the
inner thigh, neck, and shoulders and calling her names such
as “sweetie” and “babe”. Ms. Vance
reported Mr. Pfauth's conduct to Ms. Vilkaitis. Ms.
Vilkaitis gave Mr. Pfauth a written warning stating,
“If immediate and sustained improvement does not occur,
further disciplinary action may result, up to and including
termination of employment.” Ms. Vilkaitis emailed Ms.
Vance, informed her that Mr. Pfauth had been warned, and
asked her to report any additional concerns she may have
about Mr. Pfauth's conduct. No evidence was presented
that Mr. Pfauth continued to make unwelcome sexual advances
toward Ms. Vance after Ms. Vilkaitis served him with the
written warning. However, Mr. Pfauth's conduct has
negatively impacted Ms. Vance, and she has attended therapy
to address its effect on her.
April 2014, Ms. Vance also made additional leave requests
under the FMLA. The first was so that she could undergo back
surgery. The second was so that she could have surgery to
have her tonsils removed. These requests were granted.
Ms. Vance returned from FMLA leave for her back surgery, Ms.
Carter visited with Ms. Vance at her work station. According
to Ms. Carter, Ms. Vance was “abrupt and rude”
during this conversation. However, Ms. Vance said that she
was not rude to Ms. Carter and related that Ms. Carter told
her, “Welcome back”, to which Ms. Vance replied,
“Thank you.” That was the extent of their
after returning from FMLA leave for her tonsillectomy, on May
5, 2014, Ms. Carter gave Ms. Vance a “Corrective Action
Form”. The form stated that Ms. Vance was not
performing her job in a satisfactory manner, was rude and/or
had altercations with others, and was insubordinate. Ms.
Carter demanded that Ms. Vance sign the form. Ms. Vance
denied that she had engaged in any of the conduct listed on
the form and stated that she wanted to have an attorney
review the form before she signed it. Ms. Carter gave Ms.
Vance three days to sign and return the form.
8, 2014, Ms. Vance arranged to leave work early. Before she
left, she did not return the form. Ms. Carter, TOLMAR's
human resources director Mara Hartley, and TOLMAR's vice
president of logistics Michelle Mantas called Ms. Vance at
4:45 p.m. to discuss why she had not returned it. Ms. Vance
offered to bring the form in either immediately or the next
morning by 8:00 a.m. Instead of allowing her to bring the
form, Ms. Hartley informed Ms. Vance that she was suspended
and would not have access to the building. She also said that
a decision would be made as to her employment by the end of
the next day.
9, 2014, Ms. Carter, Ms. Hartley, and Ms. Mantas decided to
terminate Ms. Vance's employment with TOLMAR. In her
declaration (#47-3), Ms. Hartley attests
that the primary reason for Ms. Vance's termination was
the failure to return the signed form by May 8.
on these facts, Ms. Vance commenced this action. In her
Complaint (#4), she asserts six claims: (1)
Interference and Retaliation in violation of the Family
Medical Leave Act (“FMLA”) (2) Sexual Harassment
under 42 U.S.C. § 2000e, et seq., (3) Wrongful
Termination under Colorado law, (4) Negligent Infliction of
Emotional Distress under Colorado law, (5) Intentional
Infliction of Emotional Distress under Colorado law, and (6)
Breach of Implied Contract under Colorado law. TOLMAR moves
for summary judgment (#47) on all of Ms.
Vance's claims. In her Response (#48),
Ms. Vance withdraws her claim for Intentional Infliction of
Emotional Distress but otherwise opposes TOLMAR's motion.
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 Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Thus, the primary question presented to the Court in
considering a Motion for ...