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

          ORDER

          KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion for Summary Judgment [#56]^[1] (the “Motion”). Although represented by counsel, Plaintiff has not timely filed a Response. See D.C.COLO.LCivR 7.1(d). Defendants filed a Reply in Support of their Motion for Summary Judgment [#57].

         The Motion [#56] is also technically, in the alternative, a Motion to Dismiss, because “Defendants adopt and incorporate their Motion to Dismiss [#43] and Reply in Support [#50] herein.” Motion [#56] at 2. They argue here that “[f]or the reasons stated in Defendants' Motion to Dismiss [#43] and Reply in Support [#50] this Court should dismiss Plaintiff's Amended Complaint.” Id. The Court previously agreed to consider all arguments raised in the Motion to Dismiss [#43] (which was denied as moot given that all arguments were incorporated into the present Motion [#56]), to the extent Defendants' other arguments were unsuccessful. Minute Order [#60].

         The Court has reviewed the Motion [#56], the Reply [#57], the incorporated briefs [#53, #50], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#56] is GRANTED in part and DENIED in part.^[2]

         I. Summary of the Case^[3]

         Plaintiff is a former employee of Defendant Professional Bureau of Collections of Maryland, Inc. (“PBCM”). Motion [#56] at 3; Am. Compl. [#40] ¶ 49. At various times relevant to this lawsuit, Defendant Phillip Justus (“P. Justus”) and Defendant Travis Justus (“T. Justus”) each served as President of Defendant PBCM and as members of the Board of Directors of Defendant PBCM. See Decl. of P. Justus [#56-2] ¶ 1; see also Motion [#56] at 6 ¶ 13; see also Am. Compl. [#40] ¶¶ 3-4. Plaintiff asserts the following three claims regarding events occurring in connection with her employment with Defendant PBCM: (1) violations of Title VII (hostile work environment, unlawful discrimination on the basis of sex, and retaliation) against Defendant PBCM; (2) violation of the Family Medical Leave Act (“FMLA”) (retaliation) against all Defendants; and (3) violation of the FMLA (interference) against all Defendants. Am. Compl. [#40] ¶¶ 54-85.

         Throughout Plaintiff's employment with Defendant PBCM, Plaintiff complained of workplace harassment. Id. ¶¶ 17-26. Plaintiff filed at least some complaints with PBCM's Human Resources department, but continued to be displeased with her workplace. Id. ¶ 27; Motion [#56] at 7 ¶¶ 18-19. Because Plaintiff has a son with a severe peanut allergy, she submitted FMLA paperwork to PBCM at the beginning of December 2014 so that she could more flexibly care for her son. Tr. of the Test. of Robyn D. Ross [#56-1] at 3. On January 31 or February 1, 2015, Plaintiff emailed Defendant P. Justus stating that she would be late on February 1 because her son had gone into anaphylaxis and had been hospitalized. Id. at 4. She did not state in the email that she was requesting FMLA leave, but assumed Defendant P. Justus would infer that she was doing so, considering the circumstances. Id. About one week later, Plaintiff's employment with PBCM was terminated. Id. at 5. Defendants contend that this termination was due to Plaintiff's poor job performance. See Def. PBCM's Suppl. Resps. to Pl.'s First Set of Combined Disc. Reqs. [#56-4] at 3-10 (providing detailed explanation of circumstances leading to Plaintiff's termination). Defendants also offer evidence that the decision to terminate Plaintiff was made on or before January 30, 2015. See Decl. of P. Justus [#56-2] ¶ 6. Plaintiff maintains that these reasons are pretextual and that she was terminated in retaliation for (1) filing for and using FMLA leave and (2) reporting her complaints to the Human Resources department. Am. Compl. [#40] ¶ 50. Plaintiff, however, offers no evidence to support these alternative reasons for her termination.

         II. Standard of Review

         A. Federal Rule of Civil Procedure 56

         The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Pursuant to Fed.R.Civ.P. 56(a), summary judgment should be entered if the pleadings, the discovery, any affidavits, and disclosures on file show “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

         The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the [C]ourt a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of her claim such that a reasonable jury could find in her favor. See Anderson, 477 U.S. at 248. The nonmovant must go beyond the allegations and denials of her pleadings and provide admissible evidence, which the Court views in the light most favorable to her. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). T h e nonmoving party's evidence must be more than “mere reargument of [her] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).

         Only documents that meet the evidentiary requirements of Fed.R.Civ.P. 56 may be considered for purposes of summary judgment. Rule 56(c) provides that:

         (1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.] ...

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c)(1)-(4).

         The Court may not grant a motion for summary judgment merely because the nonmovant has failed to respond. See Galvin v. McCarthy, No. 07-cv-00885-PAB-BNB, 2009 WL 890717, at *2 (D. Colo. March 31, 2009) (citing Reed v. Bennett, 312 F.3d 1190, 1194 (10th Cir. 2002)). The Court must apply the usual Rule 56 analysis and consider whether the moving party has met its burden. Id. (citing Reed, 312 F.3d at 1194). The Court must “accept as true all material facts asserted and properly supported in the summary judgment motion” and grant summary judgment if, based on those facts, the moving party is entitled to judgment as a matter of law. Reed, 312 F.3d at 1195 (emphasis added); see also Fed. R. Civ. P. 56(e)(3) (stating that if the opposing party does not respond, summary judgment should be entered if “the movant is entitled to it”).

         B. Fed. Rule of Civil Procedure 12(b)(6)

         To survive a 12(b)(6) motion to dismiss, the complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plausible claim is a claim that “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Barnes, 783 F.3d at 1191-92, conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at 681. However, so long as the plaintiff offers sufficient factual ...