United States District Court, D. Colorado
ROBYN D. ROSS, an individual, Plaintiff,
PROFESSIONAL BUREAU OF COLLECTIONS OF MARYLAND, INC., a Maryland corporation, PHILLIP JUSTUS, an individual, and TRAVIS JUSTUS, an individual, Defendants.
KRISTEN L. MIX UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion
for Summary Judgment [#56] (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].
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
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
Summary of the Case
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]
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.
Standard of Review
Federal Rule of Civil Procedure 56
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.
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).
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:
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
(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).
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”).
Fed. Rule of Civil Procedure 12(b)(6)
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 ...