United States District Court, D. Colorado
ORDER
PHILIP
A. BRIMMER UNITED STATES DISTRICT JUDGE
This
matter comes before the Court on defendant's Motion for
Summary Judgment [Docket No. 42]. The Court has jurisdiction
pursuant to 28 U.S.C. § 1331.
I.
BACKGROUND[1]
This
case arises out of plaintiff's employment with defendant
Harrison School District No. 2 as principal of Monterey
Elementary School. Plaintiff was hired as the principal of
Monterey for the 2014-2015 school year. Docket No. 42 at 3,
¶ 1. On August 14, 2014, plaintiff fell from the
bleachers at school and suffered injuries to her back and
hips for which she filed a worker's compensation claim.
Id., ¶ 4. Plaintiff's one-year contract was
subsequently renewed for the 2015-2016 school year.
Id. at 5, ¶ 18.
In
August 2015, plaintiff learned that she had the rheumatoid
arthritis factor. Id., ¶ 20; Docket No. 44 at
5, ¶ 20; Docket No. 47 at 2, ¶ 20. She was formally
diagnosed with rheumatoid arthritis in January 2016. Docket
No. 42 at 5, ¶ 20. On August 25, 2015, plaintiff was
taken from the school in an ambulance because she was
lightheaded, feeling nauseous, having heart palpitations, and
experiencing high blood pressure. Docket No. 44 at 10, ¶
11. Plaintiff did not know the cause of her symptoms. Docket
No. 42 at 6, ¶ 23. On August 26 and August 27, 2015,
plaintiff was absent from work. Docket No. 42 at 6, ¶
24; Docket No. 44 at 6, ¶ 24. After returning to work on
August 28, 2015, plaintiff took a second leave of absence
from August 31, 2015 through September 4, 2015 for which she
used paid medical leave. Docket No. 42 at 6, ¶¶ 25,
27; Docket No. 44 at 7, ¶ 27.[2] Although plaintiff never
requested FMLA leave, Docket No. 42 at 7, ¶ 32, she gave
defendant a doctor's note stating that she was
“unable to work” between August 31 and September
4, 2015. Docket No. 44 at 9, ¶ 2.[3]Upon returning to
work on September 8, 2015, plaintiff was placed on paid
administrative leave, effective immediately, and informed
that the superintendent - Andre Spencer - would recommend to
the board that plaintiff not be rehired for the following
academic year. Docket No. 42 at 8, ¶ 36; Docket No. 44
at 9, ¶ 6; Docket No. 42-12.[4] Plaintiff remained on paid
administrative leave through the end of her employment
contract, which expired on June 30, 2016. Docket No. 42 at 8,
¶ 37.[5]
On
January 27, 2017, plaintiff filed this lawsuit asserting
claims for disability discrimination under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§
12101 et seq., interference with her rights under
the Family and Medical Leave Act (“FMLA”), 29
U.S.C. §§ 2601 et seq., and retaliation
under the ADA and FMLA. See Docket No. 1. On March
28, 2017, defendant moved to dismiss the lawsuit under
Fed.R.Civ.P. 12(b)(6). Docket No. 12. While that motion was
pending, the parties stipulated to the dismissal of
plaintiff's ADA discrimination claim with prejudice.
Docket No. 41. On January 30, 2018, defendant moved for
summary judgment on plaintiff's remaining claims. Docket
No. 42.
II.
LEGAL STANDARD
Summary
judgment is warranted under Federal Rule of Civil Procedure
56 when the “movant shows that 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);
see Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248-50 (1986). A disputed fact is
“material” if under the relevant substantive law
it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32
(10th Cir. 2001). Only disputes over material facts can
create a genuine issue for trial and preclude summary
judgment. Faustin v. City & Cty. of Denver, 423
F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might
lead a reasonable jury to return a verdict for the nonmoving
party. Allen v. Muskogee, 119 F.3d 837, 839 (10th
Cir. 1997).
Where
“the moving party does not bear the ultimate burden of
persuasion at trial, it may satisfy its burden at the summary
judgment stage by identifying a lack of evidence for the
nonmovant on an essential element of the nonmovant's
claim.” Bausman v. Interstate Brands Corp.,
252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotation
marks omitted) (quoting Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 671 (10th Cir. 1998)). “Once
the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a
material matter.” Concrete Works of Colo., Inc. v.
City & Cty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the
allegations in the pleadings, but instead must designate
“specific facts showing that there is a genuine issue
for trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 324 (1986) (internal quotation marks omitted). “To
avoid summary judgment, the nonmovant must establish, at a
minimum, an inference of the presence of each element
essential to the case.” Bausman, 252 F.3d at
1115. When considering a motion for summary judgment, a court
must view the evidence in the light most favorable to the
non-moving party. Id.
III.
ANALYSIS
A.
ADA Retaliation
Plaintiff
asserts that defendant retaliated against her in violation of
the ADA by placing her on paid administrative leave and
declining to renew her employment after she took two medical
leaves of absence in August 2015. See Docket No. 44
at 11-12, 15.
The
ADA's retaliation provision states that “[n]o
person shall discriminate against any individual because such
individual has opposed any act or practice made unlawful by
this chapter or because such individual made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
chapter.” 42 U.S.C. § 12203(a). Where, as in this
case, a plaintiff relies on circumstantial evidence to
demonstrate retaliation, courts apply the burden-shifting
framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973). Proctor v.
United Parcel Serv., 502 F.3d 1200, 1208 (10th Cir.
2007). Under that framework, a plaintiff must first allege
sufficient facts to state a prima facie case of retaliation.
Id. Once that case is established, the burden shifts
to the employer to proffer a legitimate, non-discriminatory
reason for the adverse employment action. Id. If the
employer satisfies this burden, a plaintiff must show that
the employer's proffered justification is a
“pretext masking discriminatory animus.”
Id. (internal quotation marks omitted).
To
establish a prima facie case of retaliation under the ADA, a
plaintiff must show that: (1) she “engaged in protected
activity”; (2) she “was subjected to an adverse
employment action subsequent to or contemporaneous with the
protected activity”; and (3) “there was a causal
connection between the protected activity and the adverse
employment action.” Foster v. Mountain Coal Co.,
LLC, 830 F.3d 1178, 1187 (10th Cir. 2016) (internal
quotation marks and brackets omitted).
“Activity
protected from retaliation under the ADA includes not only
bringing or participating in formal actions to enforce ADA
rights, but also informal activity such as requesting an
accommodation for a disability.” Fieni v.
Franciscan Care Ctr., 2011 WL 4543996, at *7 (E.D. Pa.
Sept. 30, 2011) (citing Shellenberger v. Summit Bancorp,
Inc., 318 F.3d 183, 191 (3d Cir. 2003)); see also
Foster, 830 F.3d at 1188 (recognizing “that a
request for accommodation can constitute protected activity
supporting a retaliation claim”). Moreover, “it
is well-settled that a request for leave may lead to a
‘reasonable' accommodation” by
“allow[ing] an employee sufficient time to recover from
an injury or illness such that the employee can perform the
essential functions of the job.” Punt v. Kelly
Servs., 862 F.3d 1040, 1051 (10th Cir. 2017); see
also Robert v. Bd. of Cty. Comm'rs of Brown Cty.,
Kan., 691 F.3d 1211, 1217-18 (10th Cir. 2012) (stating
that “a brief leave of absence for medical treatment or
recovery can be a reasonable accommodation”). While a
plaintiff asserting a retaliation claim based on the act of
requesting or taking leave as a reasonable accommodation need
not show that she had an actual disability to establish a
prima facie case, she must demonstrate that she had a
“reasonable, good faith belief” that she was
engaging in protected activity. Selenke v. Med. Imaging
of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001). The
Court finds that plaintiff has not met this requirement.
The
ADA's implementing regulations define
“disability” as “[a] physical or mental
impairment that substantially limits one or more of the major
life activities of such individual.” 29 C.F.R. §
1630.2(g). A “physical or mental impairment”
includes “[a]ny physiological disorder or condition,
cosmetic disfigurement, or anatomical loss affecting one or
more body systems, such as neurological, musculoskeletal,
special sense organs, respiratory (including speech organs),
...