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Vance v. Tolmar, Inc.

United States District Court, D. Colorado

March 23, 2018

EMILY M. VANCE, Plaintiff,
TOLMAR, INC., Defendant.


          Marcia S. Krieger, Chief United States District Judge.

         THIS MATTER comes before the Court pursuant to the Defendant's Motion for Summary Judgment (#47), the Plaintiff's Response (#48), and the Defendants' Reply (#50).


         The Court exercises jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.


         The 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.

         The 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.

         In 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.

         In 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.

         At 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.

         In 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.

         After 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 conversation.

         Shortly 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.

         On May 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.

         On May 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.

         Based 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.


         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 Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Thus, the primary question presented to the Court in considering a Motion for ...

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